Constitutional law — Charter of Rights — Freedom of expression
— Journalist and confidential source — Document received by confidential source
from anonymous sender given to journalist on condition of confidentiality —
Document alleged to be forged — Search warrant and assistance order compelling
production of document and envelope — Protection of confidential source —
Whether guarantee of freedom of expression creates constitutionally entrenched
immunity to protect journalists against compelled disclosure of confidential
source — Canadian Charter of Rights and Freedoms, s. 2(b).

Constitutional law — Charter of Rights — Search and
seizure — Journalist and confidential source — Document received by
confidential source from anonymous sender given to journalist on condition of
confidentiality — Document alleged to be forged — Search warrant and assistance
order compelling production of document and envelope — Protection of
confidential source — Whether search warrant and assistance order reasonable
within meaning of s. 8 of Canadian Charter of Rights and Freedoms —
Whether newspaper should have been given notice of warrant application to
search its premises.

Evidence — Privilege — Journalist and confidential
source — Document received by confidential source from anonymous sender given
to journalist on condition of confidentiality — Document alleged to be forged —
Search warrant and assistance order compelling production of document and
envelope — Protection of confidential source — Whether guarantee of freedom of
expression creates constitutionally entrenched immunity to protect journalists
against compelled disclosure of confidential source — Whether confidential
source protected by common law of privilege — If so, whether journalist‑confidential
source privilege constituted on case‑by‑case basis — What elements
must be established and who bears burden of proof.

Criminal law — Search warrants — Search of newspaper
office — Whether newspaper should be given notice of application for search
warrant.

The National Post employed M as a journalist. M
investigated whether C, then Prime Minister of Canada, was improperly involved
with a loan from a federally funded bank to a hotel in C’s riding which
allegedly owed a debt to C’s family investment company. X, a secret source,
provided M with relevant information in exchange for a blanket, unconditional
promise of confidentiality. In 2001, M received a sealed envelope in the mail
that contained a document which appeared to be the bank’s authorization of its
loan to the hotel. If genuine, it could show that C had a conflict of interest
in relation to the loan. M faxed copies of the document to the bank, to the
Prime Minister’s office, and to a lawyer for the Prime Minister. All three
said that the document was a forgery. Shortly thereafter, X met M. X
described receiving the document anonymously in the mail, discarding the
original envelope, and passing the document on to M in the belief that it was
genuine. M was satisfied that X was a reliable source who did not believe that
the document was a forgery when he or she forwarded it to M. X feared that
fingerprint or DNA analysis might reveal his or her identity and asked M to
destroy the document and the envelope. M refused but told X that his
undertaking of confidentiality would remain binding as long as he believed that
X had not deliberately misled him.

The bank complained to the RCMP and an officer asked the
appellants to produce the document and the envelope as physical evidence of the
alleged crimes i.e. the forgery itself and the “uttering” (or putting into
circulation) of the doctored bank records. They refused and M declined to
identify his source.

The officer applied for a search warrant and an
assistance order compelling M’s editor to assist the police in locating the
document and the envelope. He intended to submit them for forensic testing to
determine if they carried fingerprints or other identifying markings (including
DNA) which might assist in identifying the source of the document. Although
the Crown informed the judge that the National Post had requested
notification of the application, the hearing proceeded ex parte and a
search warrant and an assistance order were issued.

The warrant and the order provided the appellants with
one month before the RCMP could search the National Post’s premises and
included other terms intended to accommodate the needs of the National Post
as a media entity. The appellants applied to quash the warrant and assistance
order. The reviewing judge held that there was sufficient information to
conclude the document was a forgery but that there was only a remote and
speculative possibility that disclosure of the document and the envelope would
advance a criminal investigation. She set aside the search warrant and the
assistance order. The Court of Appeal reversed that decision and reinstated
the search warrant and the assistance order. In this Court, the appellants and
supporting interveners argued that the warrant and the order should be quashed
because they infringe s. 2(b) or s. 8 of the Canadian
Charter of Rights and Freedoms, or because the secret sources are protected
by the common law of privilege.

Held (Abella J.
dissenting): The appeal should be dismissed.

Per McLachlin C.J. and
Binnie, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.: It is well
established that freedom of expression protects readers and listeners as well
as writers and speakers. It is in the context of the public right to
information about matters of public interest that the legal position of the
confidential source or whistleblower must be located. The public has an
interest in effective law enforcement. The public also has an interest in
being informed about matters of public importance that may only see the light
of day through the cooperation of sources who will not speak except on
condition of confidentiality. The role of investigative journalism has
expanded over the years to help fill what has been described as a democratic deficit
in the transparency and accountability of our public institutions. There is a
demonstrated need, as well, to shine the light of public scrutiny on the dark
corners of some private institutions. The appellants and their expert
witnesses make a convincing case that unless the media can offer anonymity in
situations where sources would otherwise dry‑up, freedom of expression in
debate on matters of public interest would be badly compromised. Important
stories will be left untold, and the transparency and accountability of our
public institutions will be lessened to the public detriment.

In appropriate circumstances, accordingly, the courts
will respect a promise of confidentiality given to a secret source by a
journalist or an editor. The public’s interest in being informed about matters
that might only be revealed by secret sources, however, is not absolute. It
must be balanced against other important public interests, including the
investigation of crime. In some situations, the public’s interest in
protecting a secret source from disclosure may be outweighed by other competing
public interests and a promise of confidentiality will not in such cases
justify the suppression of the evidence.

This case involves an attempt by person(s) unknown to
dupe the appellants into publishing a document which, on its face, implicated a
former Prime Minister of Canada in a serious financial conflict of interest.
The appellants were unable to confirm the document’s authenticity and the
police have reasonable grounds to believe that the document is a forgery. The
document and envelope that came into M’s possession constitute physical
evidence reasonably linked to a serious crime. The police seek to subject this
material to forensic analysis. A search to retrieve the physical
instrumentality by which the offence was allegedly committed would likely
satisfy the test in s. 487 of theCriminal Code, even if (as the
reviewing judge predicted) forensic analysis of the document and the envelope
do not shed light on the identity of the offender. The document and the
envelope are not merely pieces of evidence tending to show that a crime has
been committed. They constitute the actus reus or corpus delicti
of the alleged offences.

Freedom to publish the news necessarily involves a
freedom to gather the news, but each of the many important news gathering
techniques, including reliance on secret sources, should not itself be regarded
as entrenched in the Constitution. The protection attaching to freedom of expression
is not limited to the “mainstream media”, but is enjoyed by “everyone” (in the
words of s. 2(b) of the Charter) who chooses to exercise his
or her freedom of expression on matters of public interest. To throw a
constitutional immunity around the interactions of such a heterogeneous and ill‑defined
group of writers and speakers and whichever “sources” they deem worthy of a
promise of confidentiality and on whatever terms they may choose to offer it
(or, as here, choose to amend it with the benefit of hindsight) would blow a
giant hole in law enforcement and other constitutionally recognized values such
as privacy. The law needs to provide solid protection against the compelled
disclosure of secret sources in appropriate situations, but the history of journalism
in this country shows that the purpose of s. 2(b) can be fulfilled
without the necessity of implying a constitutional immunity. Accordingly, a
judicial order to compel disclosure of a secret source in accordance with the
principles of common law privilege would not in general violate s. 2(b).

Although the common law does not recognize a class
privilege protecting journalists from compelled disclosure of secret sources, a
journalist’s claim for protection of secret sources can be assessed properly
using the case‑by‑case model of privilege. The Wigmore criteria
provide a workable structure within which to assess, in light of society’s
evolving values, the sometimes‑competing interests of free expression and
the administration of justice and other values that promote the public
interest. This will provide the necessary flexibility and an opportunity for
growth that is essential to the proper function of the common law.

The scope of the privilege will depend, as does its very
existence, on a case‑by‑case analysis, and may be total or
partial. It is capable, in a proper case, of being asserted against the
issuance or execution of a search warrant. A promise of confidentiality will be
respected if: the communication originates in a confidence that the identity
of the informant will not be disclosed; the confidence is essential to the
relationship in which the communication arises; the relationship is one which
should be sedulously fostered in the public good; and the public interest in
protecting the identity of the informant from disclosure outweighs the public
interest in getting at the truth. This approach properly reflects Charter
values and balances the competing public interests in a context‑specific
manner.

The media party asking the court to uphold a promise of
confidentiality must prove all four criteria and no burden of proof shifts to
the Crown. This includes, under the fourth criterion, proving that the public
interest in protecting a secret source outweighs the public interest in a
criminal investigation. The weighing up under this criterion will also include
the nature and seriousness of the offence under investigation, and the
probative value of the evidence sought to be obtained measured against the
public interest in respecting the journalist’s promise of confidentiality. The
underlying purpose of the investigation is relevant as well. Until the media
have met all four criteria, no privilege arises and the evidence is
presumptively compellable and admissible. Therefore, no journalist can give a
secret source an absolute assurance of confidentiality.

In this case, the first three of the four criteria are
met. The communication originated in confidence and neither the journalist‑source
relationship nor the communication would have occurred without
confidentiality. This type of journalist‑source relationship ought to be
sedulously fostered given the importance of investigative journalism exploring
potential conflicts of interest at the highest levels of government. The
appellants, however, have failed to establish the fourth criterion. The
alleged offences are of sufficient seriousness to justify the decision of the
police to investigate the criminal allegations. The physical evidence is
essential to the police investigation and likely essential as well to any
future prosecution. While it is appropriate under this criterion to assess the
likely probative value of the evidence sought, the reviewing judge ought not to
have pre‑empted the forensic investigation by seemingly prejudging the
outcome without first considering all the relevant factors in her assessment.
DNA analysis is capable of producing results even under exceptionally
unpromising circumstances. The police should not be prevented from pursuing
well‑established modes of forensic analysis of relevant physical evidence
on the basis that in the end such analysis may prove to be unsuccessful.

The argument that there is a “fatal disconnect between
the envelope, the document, the identity of X and the alleged forgery” hinges
on the credibility of X’s story that he or she was not the perpetrator of the
forgery, but an innocent recipient, who passed it on to M in good faith. However
a denial of criminal involvement is not a sufficient ground to put an end to a
serious criminal investigation, even where the intermediate (though not the
ultimate) intended victim of the alleged crime happens to be a media
organization. The police need not accept X’s anonymous, uncorroborated and
self‑exculpatory statements to a third party (M) as a reason to terminate
their investigation of the physical evidence any more than they need accept the
disclaimers of any other potential witness to a crime, especially when the
witness may also be the perpetrator.

The media’s ss. 2(b) and 8Charter
interests are clearly implicated when the police seek to seize documents in
their possession. Even where no privilege is found to exist, warrants and
assistance orders against the media must take into account their “special
position” and be reasonable in the “totality of circumstances”. It is not
sufficient for the Crown merely to establish that the requirements set out in
ss. 487.01 and 487.02 of the Criminal Code were met. In this case,
the conditions governing the search ensured that the media organization would
not be unduly impeded by a physical search in the publishing or dissemination
of the news. The order contained the usual clause directing that any documents
seized be sealed on request. The police had reasonable grounds to believe that
criminal offences had been committed and that relevant information would be
obtained. The search warrant was reasonable within the meaning of s. 8 of
the Charter.

On the facts of this case, the ex parte nature of
the issuing judge’s order is not a ground for setting the warrant aside. There
is no jurisdictional requirement to give notice to a media entity of an
application for a warrant to search its premises. The media should have an
opportunity to argue against a warrant at the earliest reasonable opportunity,
but whether and when to provide prior notice remain matters of judicial
discretion. Where, as here, a court proceeds ex parte, adequate terms must
be inserted in the warrant to protect the special position of the media, and to
permit the media ample time and opportunity to challenge the warrant.

In this case, the issuing judge was aware that the
secret source issue lay at the heart of the controversy, and the appellants’
position was fully protected by the terms of the warrant. They have not
demonstrated any prejudice on that account. The assistance order also was
reasonable. Given the concerted action between M and his editor, it was appropriate
to enlist the editor’s assistance in locating and producing the concealed
documents.

Accordingly, the warrant and assistance order were
properly issued and must be complied with even if the result is to disclose the
identity of the secret source who, the police have reasonable cause to believe,
uttered (and may indeed have created) a forged document.

Per LeBel J.: Claims of
journalist‑source privilege should be resolved on a case‑by‑case
basis applying the Wigmore criteria, and there is agreement with the majority’s
weighing of the relevant rights and interests under the fourth criterion of the
analysis.

There is agreement with Abella J. that when an
application for a search warrant is made against a media organization, there is
a presumptive requirement to give notice of the application to the affected
organization. The media play a key role in disseminating information and
triggering debate on public issues. The process of applying for search
warrants should be sensitive to the need to prevent undue or overly intrusive
interference in media operations and affected media organizations should be
able to raise their concerns at the first opportunity. The requirement to give
notice may be waived in urgent situations, in which case the issuing judge
should craft conditions to limit interference with the media organization’s
operations. In this case, since the lack of notice did not make the search
unreasonable and the issuing judge proceeded on the basis of established law,
the search warrant should not be quashed.

Per Abella J.
(dissenting): Journalist‑source privilege should be assessed on a case‑by‑case
basis. The balancing of the interests of the press against other societal
interests, such as crime prevention, prosecution and investigation, should be
done in accordance with the four Wigmore criteria, infused with Charter
values. In this case, the search warrant and assistance order should be
quashed. The criteria are met, including the fourth criterion, which requires
the claimant to demonstrate that the injury that would inure to the
relationship by the disclosure of the communications is greater than the
benefit thereby gained for the correct disposal of the litigation. The harm
caused by the disclosure of the identity of the confidential source in this
case is far weightier on the scales than any benefit to the investigation of
the crime.

The media’s role in disseminating information is
pivotal in its contribution to public debate, and the use of confidential
sources can be an integral part of the responsible gathering of the news and
the communication of matters of public interest. Several jurisdictions have
already recognized the importance of confidential sources by granting,
legislatively or judicially, some form of qualified privilege to journalists.
The chilling effect that could result from the compelled exposure of
confidential journalistic sources also cannot be ignored. In the case before
us, X’s confidentiality was crucial to M’s ability to write on a subject of
public interest. M had prior positive experiences with X where he had been
able to confirm the authenticity of information provided by X via an
intermediary. He also took steps to assure himself of X’s credibility and
integrity in connection with the latest document by asking for a confidential
affidavit and telling X that his/her confidentiality would only be protected if
M were satisfied that he was not being misled. Where a journalist has taken
credible and reasonable steps to determine the authenticity and reliability of
a source, one should respect his or her professional judgment and pause before
trespassing on the confidentiality which is the source of the relationship. In
this case, demonstrable and profound injury to the journalist/source
relationship will result from disclosure of the documents and potentially of
the identity of the source.

On the other side of the balancing exercise, the
benefits of disclosure range from speculative to negligible. While it is
undisputed that the investigation of crime is an important public objective,
the evidence sought by the state is of only questionable assistance in this
case. The police hoped to find DNA and fingerprint evidence on the envelope
and the document which they thought might reveal the identity of the source of
the alleged forgery. However, there is a fatal disconnect between the
envelope, the document, the identity of X and the alleged forgery. X received
the document anonymously and discarded the original envelope in which he/she
received the document. Since X does not know the identity of the sender,
learning X’s identity will yield virtually no evidence that could assist in
determining who was responsible for the alleged forgery. Moreover, the more documents
are manipulated, the less likely the chances of obtaining fingerprints. Both
the document and the envelope had been extensively handled. X is therefore in
no position to provide any information of assistance to the investigation and
is, in any event, under no legal obligation to speak to the police. The
benefit to the forgery investigation of getting the documents is, therefore, at
best marginal. The only remaining purpose for learning the confidential
source’s identity is to discover who created this public controversy. This by
itself is not an acceptable basis for interfering with freedom of the press.
Lastly, the remote possibility of resolving the debt forgery — a crime of
moderate seriousness — is far from sufficiently significant to outweigh the
public benefit in protecting a rigorously thorough and responsible press.

A search warrant of media premises is a particularly
serious intrusion, and a decision should not be made about its propriety
without submissions from the party most affected. The operating presumption
should be that the media’s unique institutional character entitles it to notice
when a search warrant is sought against it unless there are urgent
circumstances justifying an ex parte hearing. No such notice was given
to the National Post and there was no such urgency. It therefore lost
the opportunity to make timely submissions on the confidential nature of the
source and the serious informational gaps in the Information to Obtain. Had
the fuller record and their arguments been known, the outcome of the hearing
might have been different.

Canadian Association of Journalists. Guidelines
for Investigative Journalism, approved at the 2004 Annual General Meeting
(online:
http://www.eagle.ca/caj/principles/principles-statement-investigative-2004.htm).

Editorial. “Shielding a Basic Freedom”, The New
York Times, September 12, 2005, p. A20.

Daniel J.Henry,
for the intervener the Canadian Broadcasting Corporation.

Tim Dickson, for the
intervener the British Columbia Civil Liberties Association.

JamieCameron and
Matthew Milne‑Smith, for the intervener the Canadian Civil Liberties
Association.

Brian MacLeodRogers
and Iain A. C. MacKinnon, for the interveners the Canadian
Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, the Canadian
Journalists for Free Expression, the Canadian Association of Journalists, the
Professional Writers Association of Canada, RTNDA Canada/Association of
Electronic Journalists, Magazines Canada, the Canadian Publishers’ Council, the
Book and Periodical Council, the Writers’ Union of Canada and PEN Canada.

The judgment of McLachlin C.J. and Binnie, Deschamps, Fish, Charron,
Rothstein and Cromwell JJ. was delivered by

[1]Binnie J. — The public has the right to every person’s evidence. That is the
general rule. The question raised by this appeal is whether the appellants can
exempt themselves from this obligation on the basis of a journalistic privilege
rooted either in s. 2(b) of the Canadian Charter of Rights and
Freedoms which guarantees freedom of expression, “including freedom of the
press and other media of communication”, or in the common law.

[2]Specifically, the National Post, its editor-in-chief and one of
its journalists apply to set aside a search warrant obtained from the Ontario
Court of Justice authorizing the police to seize what are alleged to be forged
bank records and the envelope in which the appellants received the records from
secret source(s). The police believe that seizure of the physical documents is
essential to proof of the forgery, and that forensic analysis may lead them
directly or indirectly to the identity of the perpetrators. The appellants,
for their part, seek to protect the identity of their secret source(s), who may
or may not be directly implicated in the forgery. If the police are correct,
therefore, the documents in the control of the National Post and its
co-appellants are not merely links in the chain of criminal investigation but
constitute in themselves the essential physical evidence of alleged crimes —
the forgery itself and the “uttering” (or putting into circulation) of the
doctored bank records in the plain brown envelope.

[3]The courts should strive to uphold the special position of the media and
protect the media’s secret sources where such protection is in the public
interest, but this is not the usual case of journalists seeking to avoid
testifying about their secret sources. This is a physical evidence case. It
involves what is reasonably believed to be a forged document. Forgery is a
serious crime. For the reasons that follow I agree with the Ontario Court of
Appeal that the media claim to immunity from production of the physical
evidence is not justified in the circumstances disclosed in the evidence before
the court even if the end result proves to be information that may lead to the
identification of the secret source(s). I would dismiss the appeal.

I. Overview

[4]This dispute is a controversy of undoubted public importance. It
involves an attempt by a person or persons unknown to dupe the National Post
into publishing an allegedly forged bank document which, on its face,
implicated the then Prime Minister of Canada, Jean Chrétien, in a serious
financial conflict of interest. The courts below concluded that the police
possess reasonable and probable grounds to believe that the inculpatory entries
on the “leaked” document are false. The document, if authentic, would have
suggested that at the same time the Prime Minister was said to be exerting
influence on the federal Business Development Bank of Canada (“BDBC”) to grant
a $615,000 loan to the Auberge Grand-Mère, a private business in his riding, the
Auberge Grand-Mère allegedly owed the Chrétien family investment company
$23,040. Unless the Auberge Grand-Mère could be saved from insolvency, the
story went, the debt would likely go unpaid. The Prime Minister’s private
financial interest, on this theory of events, conflicted with his public duty.
Some in the media referred to cluster of events around the loan controversy as
“Shawinigate”.

[5]The public interest in freedom of expression is of immense importance
but it is not absolute and in circumstances such as the present it must be
balanced against other important public interests, including the investigation
and suppression of crime. The courts understand the need in appropriate
circumstances to protect from disclosure the identity of secret sources who
provide the media, on condition of confidentiality, with information of public
interest, but even the journalist Andrew McIntosh recognized that if his source
had provided the document “to deliberately mislead me” the source would no
longer be worthy of protection (A.R., vol. 4, p. 1, McIntosh Affidavit, at
para. 227). It is true that Mr. McIntosh believed his source to be sincere.
Nevertheless, according to Mr. McIntosh, the source acknowledged participation
(he or she says innocently) in forwarding the alleged forgery. There would not
be many successful criminal investigations if the police were required to
accept at face value protestations of innocence by unknown persons relayed at
third hand.

[6]The reviewing judge, Benotto J., quashed the warrant in part
because she considered it unlikely that the outcome of the forensic analysis of
the appellants’ documents would be successful ((2004), 69 O.R. (3d) 427). With respect, I do not think the possibility of failure is a
reason to prevent the police from undertaking forensic inquiry by
well-established techniques such as DNA analysis of documents which the
appellants concede are reasonably linked to the alleged criminal offences. A
search to retrieve the physical instrumentality by which the offence was
allegedly committed would likely satisfy the test in s. 487 of the Criminal
Code, R.S.C. 1985, c. C-46, even if the documents did not shed light on the
identity of the offender. Moreover, if Benotto J. is correct, and the envelope
is unlikely to identify the confidential source, then there is little public
interest in refusing its production to the police.

[7]In terms of the Charter, the appellants go too far in claiming a
broad immunity from production of physical evidence. A claim that secret
sources may be disclosed is not a complete answer to a criminal investigation.
I conclude that the warrant in question does not infringe the appellants’ s. 2(b)
Charter freedom of expression. Nor, in my view, are the documents in
question protected by a common law journalistic privilege. Nor, for the
reasons to be discussed, does the warrant at issue in this case give rise to an
unreasonable search or seizure within the meaning of s. 8 of the Charter.
Journalistic privilege is very context specific. The appellants have not, in
my view, made out their claim on the facts. The warrant is valid.

II. Facts

[8]The appellant Andrew McIntosh was employed by the National Post
from August 1998 until February 2005. He took an interest in then Prime
Minister Jean Chrétien’s involvement with the Grand-Mère Golf Club located in
Mr. Chrétien’s home riding of St-Maurice, Quebec. His investigation led him to
suspect Mr. Chrétien’s involvement with a 1997 loan from the BDBC to the
Auberge Grand-Mère, a hotel located next to the golf club, and with other
federal grants in the riding. During his investigations, Mr. McIntosh
contacted a person known to us only as X, but at that time X was unwilling to
talk to Mr. McIntosh, even on a confidential basis.

A. The Secret Source

[9]However, in the Fall of 2000, another individual known only as Y
contacted Mr. McIntosh and indicated that he or she had important information
but would only disclose it in return for a promise of confidentiality. Mr.
McIntosh was generally authorized by the then editor-in-chief of the National
Post to give promises of confidentiality and he routinely did so. The
editor-in-chief testified that he considers himself a party to such promises of
confidentiality. Indeed, the reviewing judge found that “[a]ll of Mr.
McIntosh’s work was done with the support of the then Editor-in-Chief” (para.
8).

[10]Mr.
McIntosh testified that “[t]he condition I agreed to in order to gain access to
these materials was that I would . . . give a blanket, unconditional promise of
confidentiality to protect the identity of both X and Y” (McIntosh Affidavit,
at para. 156).

[11]Y
told Mr. McIntosh that he was acting on X’s behalf and explained that X was
willing to provide McIntosh with documents and information concerning the
Auberge Grand-Mère loan. Based on materials received from Y, including what
appeared to be copies of original documents from BDBC files and information
received from other sources, Mr. McIntosh reported in the National Post
that Mr. Chrétien had called the president of the BDBC and urged approval of
the bank loan to Auberge Grand-Mère. When asked by reporters to comment, Mr.
Chrétien acknowledged that the story was accurate. Numerous articles followed.

B. The Plain Brown Envelope

[12]On
April 5, 2001, Mr. McIntosh received a sealed plain brown envelope at the
Ottawa Bureau of the National Post. The envelope contained a document
that appeared to be a copy of a BDBC internal loan authorization for a $615,000
mortgage to Les Entreprises Yvon Duhaime Inc. (Auberge Grand‑Mère) in
August 1997. On the face of it, the document purported to show that, at the
time it applied for and received the loan, Auberge Grand‑Mère listed an
outstanding debt of $23,040 to “JAC Consultants”, a Chrétien family investment
company. Mr. McIntosh concluded that if the document were genuine, it would
represent a major escalation in the Shawinigate story.

[13]To
check the authenticity of the document, Mr. McIntosh faxed copies to the BDBC,
the Prime Minister’s office, and to a lawyer for the Prime Minister. All three
said that the document was a forgery. The BDBC sent two letters to the National
Post on April 6, 2001. The first claimed that the BDBC’s records showed no
indication of a debt owed to JAC Consultants. In the second letter, the BDBC
warned the National Post that bank documents were confidential and
should not be disclosed. A short time after receiving these letters, Mr.
McIntosh put the document and its envelope somewhere, he claims, only he is
able to access them.

[14]The
Bloc Quebecois also received a copy of the BDBC “document” which it photocopied
and distributed to its members and others. The story was picked up by some
news sources. The police believe, however, that only the National Post
has an envelope and document that could disclose fingerprint or DNA evidence
that might in turn lead to identification of the perpetrator(s) and provide
physical evidence of the alleged crime(s).

[15]Since
it was unable to confirm the document’s authenticity, the National Post hesitated
to publish the allegations. However, other news organizations published
details about the leaked document and the reference to the alleged $23,040 loan
and eventually the National Post picked up the story and reported that
the Globe and Mail, SunMedia and CTV had already published some details
of the alleged bank document, as had the Ottawa Citizen.

C. The Modified Undertaking of Confidentiality

[16]Sometime
during the week after the receipt of the document, X sought a meeting with Mr.
McIntosh, who then consulted legal counsel and editors. X confirmed that it
was he or she who had sent the envelope and asked that it be destroyed. X expressed
concern that the police might try to use it to identify him or her through
fingerprint or DNA analysis, and feared that the envelope might link him or her
to the bank document now alleged to be a forgery. Mr. McIntosh testified that
he told X “that I would not dispose of them. I said this would be both
improper and highly unethical given the serious allegation that the document
had been forged” (McIntosh Affidavit, at para. 225).

[17]However,
as stated earlier, Mr. McIntosh also told X that so long as “I believed that
[X] had not provided the document to deliberately mislead me, my undertaking of
confidentiality would remain binding. I also told Confidential Source X that
should irrefutable evidence to the contrary emerge, our agreement of
confidentiality would become null and void. X agreed to these terms” (McIntosh
Affidavit, at para. 227).

[18]Mr.
McIntosh testified that X explained that he or she had received the document in
the mail anonymously and had passed it on to Mr. McIntosh in the belief that it
was genuine. On at least one other occasion, Mr. McIntosh had been able to
confirm the authenticity of documents that X claimed to have received in the
same way. In his evidence, Mr. McIntosh said he was satisfied that X was a
reliable source and that the loan authorization was genuine. If the loan
authorization was a forgery, Mr. McIntosh did not believe X knew that.

D. The Police Investigation

[19]In
the meantime, the BDBC had complained to the RCMP about the alleged forgery.
On June 7, 2001, RCMP Corporal Roland Gallant met with Mr. McIntosh, his
editor-in-chief, another editor of the National Post, and its legal
counsel. Counsel for the National Post refused Corporal Gallant’s request
to produce the documents. The police officer was told that before becoming
aware of the police investigation, Mr. McIntosh had placed the document and
envelope in a secure location not on National Post premises. Mr.
McIntosh declined to identify the secret source.

[20]Corporal
Gallant indicated that he would have to apply for a search warrant and
assistance order in relation to two offences — forgery (creation of a false
document with the intent that it be acted upon as genuine) and uttering a
forged document (attempting to cause Mr. McIntosh and the National Post to
act on the forged loan authorization as if it were genuine). The National
Post expressed “grave concerns” about the constitutionality of a warrant to
disclose a confidential source and requested an inter partes hearing on
the warrant application.

E. The Search Warrant and Assistance Order

[21]On
July 4, 2002, Corporal Gallant applied to the Ontario Court of Justice for a
warrant assistance order stating that the evidence he wished to seize was not
available from any other source because the document and envelope formed part
of the actus reus of these offences and would be required to
substantiate any charges. He intended to submit the document and envelope for
forensic testing to determine if they had “fingerprints or other identifying
markings which might assist in identifying the source of the document”. These
other possible identifying markers included saliva, from which a DNA sample
could be obtained.

[22]Khawly
J. was advised of the desire of the National Post for notice and a
hearing but decided to proceed ex parte. The search warrant and
assistance order were issued without written reasons. The intended effect of
the assistance order was to require the editor-in-chief of the National Post
to assist in locating the two documents in question and to make them available
to Corporal Gallant.

[23]In
relation to procedural protection, the terms of the orders attempted to
accommodate the special position of the media. It was provided that the orders
were to be served on July 5, 2002. The appellants would thereafter be given a
month to consider their position. On August 9, 2002 (or such earlier date as
the appellants agreed to) Corporal Gallant was again to attend at the offices
of the National Post and request production of the BDBC loan
authorization and the “associated” brown envelope. The warrant then provided
that after waiting two hours (to give the appellants an opportunity for
voluntary compliance without prejudice to any subsequent challenge they might
see fit to make to the issuance or execution of the warrant) the police officer
would then be free to search the National Post premises. The police
were directed to interfere “as little as possible with the operations of the
place being searched and avoid, to the extent possible, examining any notes,
documents, records or lists unconnected with securing the location of the
things subject to seizure”. If found, the documents would on request be marked
for identification and sealed in a package and delivered for safekeeping to the
Ontario Court of Justice. The appellants would then have 14 days to apply “for
the continued sealing and return of any things sealed”.

[24]The appellants duly applied to quash the warrant and assistance
order. Relying upon a considerably amplified record which included the
cross-examination of Mr. McIntosh and the filing of 15 affidavits from
experienced journalists on the use and importance of secret sources, Benotto
J., the reviewing judge, concluded that while there was “sufficient information
to conclude the document was a forgery” (para. 22), there was “only a remote
and speculative possibility that the fingerprints were those of the alleged
forgerer” and “[d]isclosure of the document will minimally, if at all, advance
the investigation while at the same time damage freedom of expression” (para.
79). Accordingly, she set aside the search warrant and assistance order. Her
decision was reversed by the Ontario Court of Appeal on February 29, 2008 in
reasons jointly authored by Justices Laskin and Simmons (2008 ONCA 139, 89 O.R.
(3d) 1). References will be made in what follows to the
reasons of the reviewing judge and the Court of Appeal.

487.01 (1) [Information for general warrant] A provincial court
judge, a judge of a superior court of criminal jurisdiction or a judge as
defined in section 552 may issue a warrant in writing authorizing a peace
officer to, subject to this section, use any device or investigative technique
or procedure or do any thing described in the warrant that would, if not
authorized, constitute an unreasonable search or seizure in respect of a person
or a person’s property if

(a) the
judge is satisfied by information on oath in writing that there are reasonable
grounds to believe that an offence against this or any other Act of Parliament
has been or will be committed and that information concerning the offence will
be obtained through the use of the technique, procedure or device or the doing
of the thing;

(b) the
judge is satisfied that it is in the best interests of the administration of
justice to issue the warrant; and

(c) there
is no other provision in this or any other Act of Parliament that would provide
for a warrant, authorization or order permitting the technique, procedure or
device to be used or the thing to be done.

487.02 [Assistance Order] Where an
authorization is given under section 184.2, 184.3, 186 or 188, a warrant is
issued under this Act or an order is made under subsection 492.2(2), the judge
or justice who gives the authorization, issues the warrant or makes the order
may order any person to provide assistance, where the person’s assistance may
reasonably be considered to be required to give effect to the authorization, warrant
or order.

IV. Analysis

[26]The
investigation and punishment of crime is vital in a society based on the rule
of law but so is the freedom of the press and other media of communication. The
general principle that the public has the right to every person’s evidence is
not absolute. Narrow exceptions have been recognized as necessary to further
precisely defined and overriding public interests. Thus the identity of the
police informant is shielded from an accused. A civil litigant has no right to
know what the opposing party privately confided to its lawyer. Spouses cannot
generally be compelled to testify against each other. Information pertaining
to national security and Cabinet confidences may be withheld on the basis of
what is called public interest immunity.

[27]The
appellants say that the public interest in getting the Shawinigate story before
Canadians, which in part relied on the use of confidential sources, outweighs
the public interest in pursuing this particular criminal investigation which
they imply may have more to do with avenging political embarrassment than
vindicating the rule of law. They ask that this Court quash the general
warrant and assistance order issued against them, either because it infringes
their freedom of expression under s. 2(b) of the Charter, or
because it is otherwise unreasonable under s. 8, which guarantees “the right to
be secure against unreasonable search or seizure”. In any event, they say, the
secret sources are protected by the common law of privilege.

A. The Importance of Confidential Sources

[28]It
is well established that freedom of expression protects readers and listeners
as well as writers and speakers. It is in the context of the public
right to knowledge about matters of public interest that the legal position of
the confidential source or whistleblower must be located. The public has an
interest in effective law enforcement. The public also has an interest in
being informed about matters of importance that may only see the light of day
through the cooperation of sources who will not speak except on condition of
confidentiality. Benotto J. accepted the evidence that many important
controversies were unearthed only because of secret sources (often internal
whistleblowers) including:

1. The tainted tuna scandal, that led
to the resignation of the Minister of Fisheries in Canada.

2. The story that Airbus Industrie
paid secret commissions in the sale of Airbus aircraft.

3. The book For Services Rendered
about the search for a suspected KGB mole in the RCMP Security Service, and
CBC’s The Fifth Estate program on that mole, code-named “Long Knife”.

4. Stories dealing with the City of
Toronto’s health inspection system for restaurants.

5. A story describing the operation
of an illegal slaughterhouse that created a major health hazard.

6. Stories about the fall of Nortel
Networks that contrasted optimistic public forecasts by Nortel executives with
internal Nortel discussions warning of a potential devastating market downturn.

7. Stories about wrongdoing by
members of the RCMP security service in early 1977, including a break-in to
obtain documents from a left-wing news agency in Montreal, Agence Presse Libre
du Québec, illegal wiretaps in Vancouver and pen-registers.

It is important,
therefore, to strike the proper balance between two public interests — the
public interest in the suppression of crime and the public interest in the free
flow of accurate and pertinent information. Civil society requires the
former. Democratic institutions and social justice will suffer without the
latter.

[29]The
media perspective was forcefully put in a 2005 editorial in The New York
Times:

In such
[whistleblowing] cases, press secretaries and public relations people are paid
not to give out the whole story. Instead, inside sources trust reporters to
protect their identities so they can reveal more than the official line.
Without that agreement and that trust between reporter and source, the real
news simply dries up, and the whole truth steadily recedes behind a wall of
image-mongering, denial and even outright lies.

(Editorial, “Shielding a Basic Freedom”, The New York Times,
September 12, 2005, at p. A20)

[30]If
a reporter, usually in consultation with an editor, gives an assurance of
confidentiality, professional journalistic ethics understandably command that
the promise be kept. The courts have long accepted the desirability of
avoiding where possible putting a journalist in the position of breaking a
promise of confidentiality or being held in contempt of court. See, e.g., St.
Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 230 C.C.C. (3d)
199. Nevertheless, most journalistic codes of ethics recognize that the
promise of confidentiality cannot be absolute, see, e.g., the Canadian
Association of Journalists’ Guidelines for Investigative Journalism
regarding “[u]se of confidential and anonymous sources”.

[31]Our
Court has previously recognized the special position of the news media in two
search warrant cases that did not involve secret sources, namely Canadian
Broadcasting Corporation v. Lessard, [1991] 3 S.C.R. 421, and Canadian
Broadcasting Corporation v. New Brunswick (Attorney General),[1991]
3 S.C.R. 459. In these cases, Cory J., for the majority, emphasized that a
justice of the peace or judge must “consider all of the circumstances in
determining whether to exercise his or her discretion to issue a warrant” (Lessard,
at p. 445 (emphasis added)). The majority of the Court laid down nine
principles applicable to media cases, and in particular:

The justice of
the peace should ensure that a balance is struck between the competing
interests of the state in the investigation and prosecution of crimes and the
right to privacy of the media in the course of their news gathering and news
dissemination. It must be borne in mind that the media play a vital role in
the functioning of a democratic society. Generally speaking, the news media
will not be implicated in the crime under investigation. They are truly an
innocent third party. This is a particularly important factor to be considered
in attempting to strike an appropriate balance, including the consideration of
imposing conditions on that warrant.

.
. .

. . . Although it is not a constitutional requirement,
the affidavit material should ordinarily disclose whether there are alternative
sources from which the information may reasonably be obtained and, if there is
an alternative source, that it has been investigated and all reasonable efforts
to obtain the information have been exhausted. [p. 445]

[32]The
appellants and their media supporters argue that these principles are too
general. The media interest, they say, is not just one of many factors to be
taken into account in “all of the circumstances”. The Charter, they
contend, entitles them to greater protection than Lessard and New
Brunswick provide. Thus, armed with ss. 2(b) and 8 of the Charter,
the appellants seek a re-examination of the existing law. The Court of Appeal
in this case, they say, focussed too narrowly on the needs of law enforcement
while downplaying, if not effectively ignoring, the broader public interest in
the media being able to play its important role as public watchdog. This
skewed perspective led the court, the appellants argue, to relieve the Crown of
the usual and appropriate onus of establishing that compelled disclosure in
this case was a demonstrable limit on the constitutionally guaranteed freedom
of expression in a free and democratic society.

[33]In
Lessard and New Brunswick, the Court accepted that freedom to
publish the news necessarily involves a freedom to gather the news. We should
likewise recognize in this case the further step that an important element in
the news gathering function (especially in the area of investigative
journalism) is the ability of the media to make use of confidential sources.
The appellants and their expert witnesses make a convincing case that unless
the media can offer anonymity in situations where sources would otherwise
dry-up, freedom of expression in debate on matters of public interest would be
badly compromised. Important stories will be left untold, and the transparency
and accountability of our public institutions will be lessened to the public
detriment.

[34]Viewed
in this light, the law should and does accept that in some situations the
public interest in protecting the secret source from disclosure outweighs other
competing public interests — including criminal investigations. In those
circumstances the courts will recognize an immunity against disclosure of
sources to whom confidentiality has been promised.

[35]In
light of these preliminary observations I propose to address the relevant
questions with respect to the claim of journalist-confidential source privilege
in this case in the following order:

– Firstly, how should the
journalists’ claim for protection of secret sources be characterized in law?
In particular, does s. 2(b) of the Charter create a
constitutionally entrenched immunity to protect journalists against the
compelled disclosure of secret sources, and if so, in what circumstances may
breaches of such an immunity be justified under s. 1?

– Secondly, if there is no such s.
2(b) immunity, is there nevertheless a common law privilege, to be
applied in light of the important public interest in freedom of expression, and
if so, is it properly conceived of as a class privilege or a case-by-case
privilege?

– Thirdly, if the
journalist-confidential source privilege is constituted on a case-by-case
basis, what are the elements that must be established, and who has the onus to
do so? This was the main battleground of this appeal.

– Fourthly, were the elements of a
case-by-case privilege established on the expanded record before the reviewing
judge here in relation to suppression of the physical evidence described in the
general warrant and assistance order?

B. How Should Journalists’ Claims for
Protection of Secret Sources Be Characterized in Law?

[36]The
appellants and supporting interveners put forward a number of conceptual models
by which to protect the identity of secret sources. None of the parties or
interveners asserts an absolute protection of sources, but there is a
difference of opinion about the provenance of a qualified privilege and its
limitations.

(1) The Constitutional Model

[37]The
broadest conception was put forward by the intervener Canadian Civil Liberties
Association (“CCLA”) supported in part by the intervener the British Columbia
Civil Liberties Association (“BCCLA”). In their view, the applicable concept
is not a common law privilege but some form of constitutional immunity against
compelled disclosure of secret sources. The CCLA argues that a s. 2(b)
immunity is established by a claimant showing (i) that he or she is a
journalist; (ii) engaged in news gathering activity; (iii) who has acquired
information under a promise of confidentiality (transcript, at p. 42). At that
point, the CCLA submits, testimonial immunity against disclosure of the source
is constitutionally guaranteed subject to the Crown being able to show a
countervailing and fact-specific overriding public interest through what the
CCLA called “a full press Section 1 analysis” (p. 45). Reliance is placed on Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, which recognized the
importance of free expression even in the context of ensuring trial fairness.
The BCCLA advances a similar series of propositions derived, it argues, from
the dissent of McLachlin J. (now Chief Justice) in Lessard.

[38]The
position of the CCLA and the BCCLA is built on the premise that protection of
confidential sources should be treated as if it were an enumerated Charter
right or freedom. But this is not so. What is protected by s. 2(b) is
freedom of expression. News gathering, while not specifically mentioned in the
text of s. 2(b) is implicit in news publication, but there are many
techniques of news gathering and it carries the argument too far, in my view,
to suggest that each of those news gathering techniques (including reliance on
secret sources) should itself be regarded as entrenched in the Constitution.
Chequebook journalism is also a routine method of gathering the news, but few
would suggest that this too should be constitutionalized. Journalists are
quick to use long-range microphones, telephoto lenses or electronic means to
hear and see what is intended to be kept private (as in the case of then
Finance Minister Marc Lalonde whose budget had to be amended because a
cameraman captured parts of what were intended to be secret budget documents on
Mr. Lalonde’s desk). Such techniques may be important for journalists (who,
unlike prosecutors, have to get along without the power of subpoena), but this
is not to say that just because they are important that news gathering
techniques as such are entrenched in the Constitution.

[39]The
courts have leaned against conferring constitutional status on testimonial
immunities. Even solicitor-client privilege, one of the most ancient and
powerful privileges known to our jurisprudence, is generally seen as a
“fundamental and substantive rule of law” (R. v. McClure, 2001 SCC 14,
[2001] 1 S.C.R. 445, at para. 17), rather than as “constitutional” even though solicitor-client
privilege is supported by and impressed with the values underlying s. 7 of the Charter.

[40]There
are cogent objections to the creation of such a “constitutional” immunity. As
recently pointed out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3
S.C.R. 640, the protection attaching to freedom of expression is not limited to
the “traditional media”, but is enjoyed by “everyone” (in the words of s. 2(b)
of the Charter) who chooses to exercise his or her freedom of expression
on matters of public interest whether by blogging, tweeting, standing on a
street corner and shouting the “news” at passing pedestrians or publishing in a
national newspaper. To throw a constitutional immunity around the interactions
of such a heterogeneous and ill-defined group of writers and speakers and
whichever “sources” they deem worthy of a promise of confidentiality and on
whatever terms they may choose to offer it (or, as here, choose to amend it
with the benefit of hindsight) would blow a giant hole in law enforcement and
other constitutionally recognized values such as privacy.

[41]The
law needs to provide solid protection against the compelled disclosure of
secret source identities in appropriate situations but the history of
journalism in this country shows that the purpose of s. 2(b) can be
fulfilled without the necessity of implying a constitutional immunity.
Accordingly, a judicial order to compel disclosure of a secret source would not
in general violate s. 2(b). There is thus no need on this branch of the
case to consider a s. 1 justification.

(2) Class Privilege Model

[42]At
common law, privilege is classified as either relating to a class (e.g.
solicitor and client privilege) or established on a case-by-case basis. In a
class privilege what is important is not so much the content of the particular
communication as it is the protection of the type of relationship. Once the
relevant relationship is established between the confiding party and the party
in whom the confidence is placed, privilege presumptively cloaks in
confidentiality matters properly within its scope without regard to the
particulars of the situation. Class privilege necessarily operates in
derogation of the judicial search for truth and is insensitive to the facts of
the particular case. Anything less than this blanket confidentiality, the
cases hold, would fail to provide the necessary assurance to the solicitor’s
client or the police informant to do the job required by the administration of
justice. The law recognizes very few “class privileges” and as Lamer C.J.
observed in rejecting the existence of a class privilege for communications
passing between pastor and penitent in R. v. Gruenke, [1991] 3 S.C.R.
263:

Unless it can be said that the policy reasons to support a class
privilege for religious communications are as compelling as the policy reasons
which underlay the class privilege for solicitor-client communications, there
is no basis for departing from the fundamental “first principle” that all
relevant evidence is admissible until proven otherwise. [p. 288]

It is likely
that in future such “class” privileges will be created, if at all, only by
legislative action.

[43]Journalistic-confidential
source privilege has not previously been recognized as a class privilege by our
Court (Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572),
and has been rejected by courts in other common law jurisdictions with whom we
have strong affinities. The reasons are easily stated. First is the immense
variety and degrees of professionalism (or the lack of it) of persons who now
“gather” and “publish” news said to be based on secret sources. In contrast to
the legal profession there is no formal accreditation process to “licence” the
practice of journalism, and no professional organization (such as a law
society) to regulate its members and attempt to maintain professional
standards. Nor, given the scope of activity contemplated as journalism in Grant
v. Torstar, could such an organization be readily envisaged.

[44]A
second problem arises in determining the respective rights and immunities of
the journalist and the source to whom confidentiality has been promised. In
the past, secret sources have voluntarily stepped out from the shadows to
reveal themselves (as in the St. Elizabeth Home case) with or without
the journalist’s consent. Is the journalist now to be given the right to
object because, for example, disclosure might reveal “journalist methods” and
“journalistic networks”? I do not think such a restriction would in general
serve the public interest in the search for truth. On the other hand, the
source cannot be said to be the holder of the privilege if, as here, the
journalist reserves the right to “out” the secret source unilaterally if, in
the journalist’s personal view, the conditions on which anonymity were offered
have not been met. In the case of solicitors and their clients, the privilege
clearly belongs to the client. Are we to say that journalistic privilege
attaches both to the journalist and the secret source? If so, what happens if
they fall into disagreement? It is particularly important in the case of class
privilege that the rules be clear in advance to all participants so that they
may govern themselves accordingly.

[45]Thirdly,
no one has suggested workable criteria for the creation or loss of the claimed
immunity. The evidence shows that journalistic practice varies considerably as
to when promises of confidentiality are properly made. Many news organizations
require the journalist to consult with an editor before making such a promise.
Others, including the National Post, do not. What would be the criteria
for such a class privilege to apply? The various media codes of ethics are
themselves in disagreement. In the present case, Mr. McIntosh’s original
“blanket, unconditional promise of confidentiality to protect the
identity of both X and Y” (McIntosh Affidavit, at para. 156 (emphasis added))
became burdened with an important condition. It was retroactively modified by
Mr. McIntosh to last only so long as Mr. McIntosh personally “believed that [X]
had not provided the document to deliberately mislead me” (para. 227). Mr.
McIntosh says his secret source agreed to this modification, but at that point
he or she was not in much of a bargaining position having already delivered up
the documents to the appellants. What are the limits to retroactive
modification of the journalist’s undertaking? Must the secret source consent
to the modification? The media argument raises more questions about the scope
and operation of the claimed class privilege than it provides solutions.

[46]Fourthly,
while the result of any privilege is to impede the search for truth, and
thereby to run the risk of an injustice to the persons opposed in interest to
the claimant, a class privilege is more rigid than a privilege constituted on a
case-by-case basis. It does not lend itself to the same extent to be tailored
to fit the circumstances.

[47]In
the United Kingdom, no class privilege attached to journalists at common law:
Ashworth Hospital Authority v. MGN Ltd., [2002] UKHL 29, [2002] 1 W.L.R.
2033. The same is true in Australia, see McGuinness v. Attorney‑General
of Victoria (1940), 63 C.L.R. 73, and John Fairfax & Sons Ltd. v.
Cojuangco (1988), 165 C.L.R. 346. In the United States, the concurring
judgment of Powell J. in Branzburg v. Hayes, 408 U.S. 665 (1972), which
from the media perspective put the best face on the majority’s rejection of any
First Amendment journalistic privilege, rejected a class privilege but held
open the possibility of a case-by-case privilege:

. . . if the newsman is called upon to give information bearing only a
remote and tenuous relationship to the subject of the investigation, or if he
has some other reason to believe that his testimony implicates confidential
source relationships without a legitimate need of law enforcement, he will have
access to the court on a motion to quash and an appropriate protective order
may be entered. The asserted claim to privilege should be judged on its facts
by the striking of a proper balance between freedom of the press and the
obligation of all citizens to give relevant testimony with respect to criminal
conduct. The balance of these vital constitutional and societal interests
on a case-by-case basis accords with the tried and traditional way of
adjudicating such questions. [Emphasis added; p. 710.]

[48]In
the United Kingdom, journalistic-secret source privilege is now covered by the Contempt
of Court Act 1981 (U.K.), 1981, c. 49. The U.K. Parliament has created a
presumptive immunity in defined circumstances, subject to being overridden on
enumerated grounds. Section 10 provides that:

No court may require a person to disclose, nor is any
person guilty of contempt of court for refusing to disclose, the source of
information contained in a publication for which he is responsible, unless it
be established to the satisfaction of the court that disclosure is necessary in
the interests of justice or national security or for the prevention of disorder
or crime.

Statutes
offering similar protections exist in a number of states of the United States.
In Australia there exists a “shield law” both at the federal level and in New
South Wales. New Zealand enacted such a law in 2006.

[49]In
Canada a number of legislative proposals have been considered both at the
federal and provincial level but none has received legislative approval.

(3) The Case-by-Case Model of Privilege

[50]The
appellants themselves advocate a balancing of interests based on Professor
Wigmore’s criteria for establishing confidentiality at common law as set out in
McClure, at para. 29, M. (A.)v. Ryan, [1997] 1 S.C.R.
157, at para. 30, Gruenke, at pp. 289-90, and Slavutych v. Baker,
[1976] 1 S.C.R. 254, at p. 261, but is informed by the Charter guarantee
of freedom of expression and the rights “of the press and other media of
communication”. It is well established that the common law may properly be
developed to reflect Chartervalues: RWDSU v. Dolphin DeliveryLtd.,
[1986] 2 S.C.R. 573, at p. 603; Ryan, at para. 21.

[51]As
mentioned, Gruenke dealt with a claim for confidentiality for
communications passing between priest and penitent or, more broadly, “religious
communications” (pp. 290-91). Just as the claim here is said to grow out of
the s. 2(b) Charter guarantee of freedom of expression, the claim
in Gruenke was said to be required by the s. 2(a) Charterguarantee
of freedom of religion and conscience. Despite the constitutional protection
for freedom of religion, the Court rejected the existence of a class privilege
but adopted instead Professor Wigmore’s distillation and synthesis of a wide
range of situations where privilege has been recognized on a case-by-case
basis. Here the law finds a mechanism with the necessary flexibility to weigh
up and balance competing public interests in a context-specific manner.

[52]When
applied to journalistic secret sources, the case-by-case privilege, if
established on the facts, will not necessarily be restricted to testimony, i.e.
available only at the time that testimony is sought from a journalist in court
or before an administrative tribunal. The protection offered may go beyond a
mere rule of evidence. Its scope is shaped by the public interest that calls
the privilege into existence in the first place. It is capable, in a proper
case, of being asserted against the issuance or execution of a search warrant,
as in O’Neillv. Canada (Attorney General) (2006), 213 C.C.C.
(3d) 389 (Ont. S.C.J.). The scope of the case-by-case privilege will depend,
as does its very existence, on a case-by-case analysis, and may be total or
partial (Ryan, at para. 18).

[53]The
“Wigmore criteria” consist of four elements which may be expressed for present
purposes as follows. First, the communication must originate in a confidence
that the identity of the informant will not be disclosed. Second, the
confidence must be essential to the relationship in which the communication
arises. Third, the relationship must be one which should be “sedulously
fostered” in the public good (“Sedulous[ly]” being defined in the New
Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007),
vol. 2, at p. 2755, as “diligent[ly] . . . deliberately and consciously”).
Finally, if all of these requirements are met, the court must consider whether
in the instant case the public interest served by protecting the identity of
the informant from disclosure outweighs the public interest in getting at the
truth. See Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, at §
2285; Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd
ed. 2009), at paras. 14.19 et seq.; D. M. Paciocco and L. Stuesser, The
Law of Evidence (5th ed. 2008), at pp. 254-59. Further, as Lamer C.J.
commented in Gruenke:

This is not to say that the Wigmore criteria are now “carved in stone”,
but rather that these considerations provide a general framework within which
policy considerations and the requirements of fact-finding can be weighed and
balanced on the basis of their relative importance in the particular case
before the court. [p. 290]

[54]It
is of passing interest that Professor Wigmore himself was not a supporter of
journalistic-secret source privilege. He described an early legislative
attempt to craft a shield law (Maryland, 1923) “as detestable in substance as
it is crude in form”. He predicted (wrongly) that it “will probably remain
unique” (Wigmore on Evidence (2nd ed. 1923), vol. 5, at § 2286, n. 7).

[55]However,
the world of journalism has moved on since Professor Wigmore’s day. The role
of investigative journalism has expanded over the years to help fill what has
been described as a democratic deficit in the transparency and accountability
of our public institutions. The need to shine the light of public scrutiny on
the dark corners of some private institutions as well is illustrated by Benotto
J.’s reference to corporate delinquencies in the list reproduced above at para.
28. Professor Wigmore’s criteria provide a workable structure within which to
assess, in light of society’s evolving values, the sometimes-competing
interests of free expression and the administration of justice and other values
that promote the public interest. This will provide the necessary flexibility
and an opportunity for growth that is essential to the proper function of the
common law.

C. Proceeding on a Case-by-Case Basis, What
Are the Elements That Must Be Established, and Who Bears the Burden of Proof?

[56]There
is little disagreement about the first two Wigmore criteria. The media accepts
that privilege can only be claimed where the communication is made explicitly
in exchange for a promise of confidentiality. Wigmore was concerned with the
confidentiality of the contents of the communication itself (which is
not the issue here because it was the mutual intention of the journalist and
the source to make the content of the communication public). However, I
think the rationale underlying the Wigmore criteria may be applied equally to a
new role, namely the maintenance of the confidentiality of the identity
of the source. Secondly, the necessity for confidentiality is the raison
d’être for the existence of the privilege. If the source does not insist
on confidentiality as a condition precedent to the disclosure then no promise
of confidentiality will be made and no privilege arises. Journalists prefer in
any event to have a source on the record to enable their readers or listeners
to evaluate its likely credibility.

[57]The
third criterion (that the source-journalist relationship is one that should be
“sedulously fostered” in the public good) introduces some flexibility in the
court’s evaluation of different sources and different types of “journalists”.
The relationship between the source and a blogger might be weighed differently
than in the case of a professional journalist like Mr. McIntosh, who is subject
to much greater institutional accountability within his or her own news
organization. These distinctions need not be canvassed in detail here since
the appellants have made out on their evidence, in my opinion, that in general
the relationship between professional journalists and their secret sources is a
relationship that ought to be “sedulously” fostered and no persuasive reason
has been offered to discount the value to the public of the relationship
between Mr. McIntosh and his source(s) in this particular case.

[58]The
fourth Wigmore criterion does most of the work. Having established the value
to the public of the relationship in question, the court must weigh against its
protection any countervailing public interest such as the investigation of a
particular crime (or national security, or public safety or some other public
good).

[59]Underlying
this analysis is the need to achieve proportionality in striking a balance
among the competing interests.

[60]The
appellants argue that once the first three Wigmorecriteria are
established the onus should switch to the Crown (or other party seeking
disclosure) to show why, on a balance of probabilities, disclosure should be
ordered (Factum, at para. 62). This is particularly so in the search warrant
context, they argue, because the court is dealing with the state as a
prosecutorial antagonist and the media as a bystander to the crime. Indeed, in
this case, the media is in a sense the intermediate victim of the
alleged crime (but has made no complaint). The eventual intended victim was
the then Prime Minister. This three steps forward one step backward argument
with respect to onus is unpersuasive because it presupposes that a privilege
arises after the third step and is then subject to rebuttal by the opposing party
at the fourth step. However, this is not the case. Until the media have met
all four Wigmore criteria no journalistic source privilege arises. The
evidence is presumptively compellable and admissible. It is the media that
advances the proposition that the public interest in protecting its secret
source outweighs the public interest in the criminal investigation. The burden
of persuasion therefore lies on the media. That said, I expect that onus will
rarely play a pivotal role at the fourth step, where “[t]he exercise is
essentially one of common sense and good judgment” (Ryan, at para. 32).

[61]The
weighing up will include (but of course is not restricted to) the nature and
seriousness of the offence under investigation, and the probative value of the
evidence sought to be obtained, measured against the public interest in
respecting the journalist’s promise of confidentiality. The Crown argues that
the existence of any crime is sufficient to vitiate a privilege but that is too
broad a generalization. The Pentagon Papers case originated in
circumstances amounting to an offence, yet few would now argue that the
publication of the true facts in that situation was not in the greater public
interest.

[62]The
underlying purpose of the investigation, as inferred from the objective
circumstances, is also relevant at the fourth stage. When investigative
reporting strikes at those in power it would not be unexpected that those in
power including the police may wish to strike back. There may be circumstances
where the criminal investigation appears to be contrived to silence improperly
the secret source, and in such cases the court may decline to order
production. Thus, in O’Neill, an investigation was launched under the Security
of Information Act to identify the secret source of a leak to a reporter
for the Ottawa Citizen. The reviewing judge, Ratushny J. found that the
RCMP sought the warrant with the intent to intimidate the reporter into giving
up her sources. The result, the police might have expected, might well have
been to disincline the journalist to publish further material on a story that
was embarrassing to both the police and to the government (para. 154). In such
a case, the demand to deliver up even physical evidence that would disclose
the identity of the secret source might well be refused. That is not this
case. The alleged forgery is distinct from whistleblowing. In terms of
getting out the truth, the “leak” of a forged document undermines rather than
advances achievement of the purpose of the privilege claimed by the
media in the public interest.

[63]In
a test of balancing the public interest in disclosure versus the public
interest in confidentiality neither the journalist nor the secret source “owns”
the privilege. Thus, where a secret source decides for whatever reason to cast
aside the cloak of anonymity the public interest no longer “sedulously fosters”
the continuation of the confidential relationship in preference to openness and
the search for the truth. In such a case, the journalist would have no basis
to seek to restrain the self-outing of the secret source. On the other hand,
where a journalist decides that the confidentiality arrangement no longer binds
(as for example, in this case, if Mr. McIntosh had concluded that the forged
bank records had been provided by the source to mislead the National Post
deliberately, and had thereby, in his view, forfeited its protection), the
balance would again tilt in favour of disclosure. The role and function of the
privilege is to facilitate the freedom of expression of the media and their
readers and listeners. Where the journalist concludes that the relationship in
a particular case should no longer be “sedulously” fostered, the substratum of
the claimed privilege is eliminated. The public interest would no
longer be served in the particular case by suppression of the identity, but of
course in the event of such disclosure, the source might have some sort of private
law claim for breach of contract or breach of confidence or other private
common law cause of action. Such private law remedies are not before us in
this appeal.

[64]In
summary, at the fourth stage, the court will weigh up the evidence on both
sides (supplemented by judicial notice, common sense, good judgment and
appropriate regard for the “special position of the media”). The public
interest in free expression will always weigh heavily in the balance.
While confidential sources are not constitutionally protected, their role is
closely aligned with the role of the “freedom of the press and other media of
communication”, and will be valued accordingly but, to repeat, at the end of
the analysis the risk of non-persuasion rests at all four steps on the claimant
of the privilege.

[65]At
this point it is important to remind ourselves that there is a significant
difference between testimonial immunity against compelled disclosure of secret
sources and the suppression by the media of relevant physical evidence. If a
client walks into a lawyer’s office and leaves a murder weapon covered with
fingerprints and DNA evidence on the lawyer’s desk the law would not allow the
lawyer to withhold production of the gun on the basis of solicitor-client
confidentiality, notwithstanding the thoroughgoing protection that the law
affords that relationship. In R. v. Murray (2000), 144 C.C.C. (3d) 289
(Ont. S.C.J.), the court affirmed this principle in the case of a lawyer
charged with suppressing sexual abuse tapes. Journalists, too, have no blanket
right to suppress physical evidence of a crime, even where its production may
disclose the identity of a confidential source. The immunity, where it exists,
is situation specific.

[66]After
the hearing of this appeal, counsel for the appellants provided us with a copy
of the recent decision of the European Court of Human Rights in Financial
Times Ltd. v. The United Kingdom, [2009] ECHR 2065 (BAILII), where a
corporate plaintiff was ultimately denied access to confidential source
documents. In that case the plaintiff Interbrew, a Belgian brewing company,
brought civil proceedings in the United Kingdom to obtain from the media leaked
documents that, it claimed, had been doctored with false information to suggest
Interbrew was on the brink of making a takeover bid for South African
Breweries. The allegedly misleading information was published by the media.
Thereafter Interbrew suffered a drop in the value of its shares. Interbrew
sought production of the documents from the Financial Times and other
newspapers on the basis that it needed to identify the “source” in order to
launch a proposed civil action for breach of confidence against the person or
persons unknown. The English Court of Appeal upheld the disclosure order on
the ground that the “relatively modest leak” was nevertheless intended to
“maximize the mischief” ([2002] EWCA Civ. 274 (BAILII), at paras. 54-55 (leave
to appeal denied, House of Lords, 9 July 2002)) and thus fell within the
“interests of justice” exception to journalistic source privilege under the
U.K. Contempt of Court Act1981. The European Court of Human
Rights disagreed. Unlike the plaintiff in the earlier case of Goodwin v.
The United Kingdom, judgment of 27 March 1996, Reports of Judgments and
Decisions 1996-II,Interbrew had not sought an injunction in the
U.K. to prevent publication (i.e. did not avail itself of alternate means to
avert the damage). Interbrew had also failed to demonstrate that information
about the identity of the person who leaked the documents was unavailable from
other sources (para. 69). The “alternate sources” principle has been part of
Canadian law since Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C.
(2d) 487 (B.C.S.C.), as it has been in the U.K. See, e.g., John v. Express
Newspapers, [2000] 3 All E.R. 257 (C.A.). It was not even clear in the Financial
Post case that the leaked documents were, in fact, “doctored”.

[67]On
the other hand in Sanoma Uitgevers B.V. v. The Netherlands, E.C.H.R.,
No. 38224/03 of 31 March 2009, the court upheld the police seizure of a CD-ROM
from the Dutch magazine Autoweek which had photographed an illegal
street race on a promise of confidentiality to the participants. The court
recognized the potential chilling effect of the seizure and breach of
confidentiality but said:

. . . it does not follow per se that the authorities are in all
such cases prevented from demanding such handover; whether this is so will
depend on the facts of the case. In particular, the domestic authorities are
not prevented from balancing the conflicting interests served by prosecuting
the crimes concerned against those served by the protection of journalistic
privilege; relevant considerations will include the nature and seriousness of
the crimes in question, the precise nature and content of the information
demanded, the existence of alternative possibilities of obtaining the necessary
information, and any restraints on the authorities’ procurement and use of the
materials concerned. [para. 57]

This all sounds
very much like the fourth Wigmore step.

[68]Accordingly,
in my view, the Strasbourg jurisprudence is not of much assistance to the
appellants. Both Goodwin and Financial Times concerned a leak to
the media by corporate whistleblowers of confidential internal documents.
Neither involved criminal proceedings. Both involved private actions in the
U.K. courts where the corporate plaintiffs, in the view of the European Court
of Human Rights, had failed to demonstrate a public interest that outweighed
the public interest in free expression. Sanoma is closer to our case.
It is true that the European Court locates journalist-source privilege in art.
10 of the Conventionfor the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 221, but that is necessarily so because
the Convention is the source of its jurisdiction. For the reasons already
stated I would not locate journalist-source protection in s. 2(b) of the
Charter but in the common law of privilege that is supportive of it.

[69]The
bottom line is that no journalist can give a source a total assurance of
confidentiality. All such arrangements necessarily carry an element of risk
that the source’s identity will eventually be revealed. In the end, the extent
of the risk will only become apparent when all the circumstances in existence
at the time the claim for privilege is asserted are known and can be weighed up
in the balance. What this means, amongst other things, is that a source who
uses anonymity to put information into the public domain maliciously may not in
the end avoid a measure of accountability. This much is illustrated by recent
events in the United States involving New York Times reporter Judith
Miller and the subsequent prosecution of her secret source, vice-presidential
aide Lewis “Scooter” Libby, arising out of proceedings subsequent to his
“outing” of CIA agent Valerie Plame: In re Grand Jury Subpoena, Judith
Miller, 397 F.3d 964 (D.C. Cir. 2005), at pp. 968-72. The simplistic
proposition that it is always in the public interest to maintain the
confidentiality of secret sources is belied by such events in recent
journalistic history.

D. Were the Elements of a Case-by-Case
Privilege Established on the Expanded Record Placed Before the Reviewing Judge
in Relation to Suppression of the Physical Evidence?

[70]The
evidence shows that the communication between Mr. McIntosh and source Y
respecting the relationship between the Prime Minister and the BDBC originated
in confidence. Had confidentiality not been assured the initial information
about Mr. Chrétien’s contacts with the BDBC would not have been provided.
Secondly, confidentiality was essential to the relationship because without the
confidentiality there would have been no disclosure and no relationship.
Thirdly, given the importance of investigative journalism in exploring
potential conflicts of interest in decision making at the highest levels of
government, the relationship between the appellants and their secret sources
ought in general to be “sedulously fostered”. Mr. McIntosh testified to a
belief that his source is sincere in denying involvement in any offences. The
transparency and accountability of government are issues of enormous public
importance. The disclosures related to a public controversy over the Prime
Minister’s relationship to private promoters seeking loans from a federally
funded bank. The public ventilation of this controversy, whatever its ultimate
merits, was clearly in the public interest.

[71]Coming
now to the “weighing up” at the fourth stage of the Wigmore analysis, the
alleged crime was described by Mr. McIntosh himself as “serious”. Certainly,
the dissemination of forged bank entries designed to “prove” an egregious
conflict of personal financial interest on the part of the Prime Minister
involving public funds is of sufficient seriousness to justify amply the
decision of the police to investigate the criminal allegations within the
limits of their ability and resources.

[72]The
real possibility of obtaining DNA evidence or other identification from the
envelope was first raised as plausible by the source himself or herself in
conversation with Mr. McIntosh. This suggests that even X believed that
forensic testing could advance the investigation to his or her detriment.
Apart from anything else, we do not know what other evidence (if any) the
police possess or to whom they are attempting to find a DNA match. While it is
appropriate under the fourth Wigmore criterion to assess the likely probative
value of the evidence sought, the reviewing judge ought not to have pre-empted
the forensic investigation by seemingly prejudging the outcome when she wrote
that “[d]isclosure of the document will minimally, if at all, advance the
investigation” (para. 79) without first considering all the relevant factors in
her assessment.

[73]My
colleague Abella J. shares Benotto J.’s pessimism regarding the fruitfulness of
forensic analysis in this case. However, the reviewing judge Benotto J. seemed
to focus on fingerprint evidence and did not canvass the merits of DNA
analysis, yet DNA analysis is capable of producing results even under
exceptionally unpromising circumstances (as was shown in the exoneration of Guy
Paul Morin). It cannot be correct that the RCMP forensic lab should be
prevented from applying well-established modes of analysis to pieces of
physical evidence that have been directly linked to a serious crime simply on
the basis that in the end such analysis may prove to be unsuccessful. I
agree with the Ontario Court of Appeal that the reviewing judge’s exercise of
discretion was, in these circumstances, unreasonable.

[74]Moreover,
let us suppose that Benotto J. and my colleague Abella J. are correct in their
scepticism about the outcome of the forensic analysis, and that the envelope is
extremely unlikely to disclose the identity of Mr. McIntosh’s secret
source(s). The court in that event would have to balance the weak public
interest in protecting an identity that is not likely to be disclosed against
the strong public interest in the production of physical evidence of the
offense. On this alternative view, as well, the injury that is likely to
result from disclosure does not outweigh the public interest in correctly
disposing of the criminal investigation.

[75]In
her reasons Abella J. refers to the “fatal disconnect between the envelope, the
documents, the identity of X and the alleged forgery” (para. 134). This
conclusion hinges on the credibility of X’s story that he or she was not the
perpetrator of the forgery, but an innocent recipient, who passed it on to Mr.
McIntosh in good faith. I do not think the police are required to accept as
true the version of events told by X as relayed through Mr. McIntosh, who has
his own interest in the outcome of this litigation. The police believe, and
all three courts below accepted, that there are reasonable grounds to
believe that entries had been forged on the alleged bank document. In my view
the police need not accept X’s anonymous, uncorroborated and self-exculpatory
statements as a reason to terminate their investigation of the physical
evidence any more than they need accept the disclaimers of any other potential
witness to a crime, especially when the witness may also be the perpetrator.

[76]I
accept, of course, that the problematic transmission from X must be assessed in
light of a history of providing information and documents that turned out to be
authentic. Nevertheless, it appears from Corporal Gallant’s statement in a passage
cited by Abella J. (para. 137), that he had no reason to believe that what X
said on this particular occasion was true. Nor was he obliged to proceed on
the basis that it was true. A denial of criminal involvement, whether
communicated directly or indirectly, is not a sufficient ground to put an end
to a serious criminal investigation, even where the intermediate (though not
the ultimate) intended victim of the alleged crime happens to be a media
organization.

[77]Recognizing
the seriousness of the situation Mr. McIntosh says he told the source that
notwithstanding his earlier “blanket, unconditional promise of confidentiality
to protect the identity of both X and Y” (McIntosh Affidavit, at para. 156), he
would not now consider himself bound by that promise “should irrefutable
evidence” emerge that the document had been provided “to deliberately mislead
me” (para. 227). It is the courts, however, and not individual journalists or
media outlets, that must ultimately determine whether the public interest
requires disclosure. Mr. McIntosh’s belief in the good faith of his source
cannot prevent the courts from reaching a different conclusion. Moreover, as
Laskin and Simmons JJ.A. noted, “[t]he document and the envelope are not merely
pieces of evidence tending to show that a crime has been committed. They are
the very actus reus [or corpus delicti] of the alleged crime”
(para. 115). In such circumstances the identity of the individual who shipped
Mr. McIntosh the forged document has no continuing claim to the protection of
the law.

E. Notwithstanding a Finding That the
Appellants Have Not Established Secret Source Privilege on the Facts of This
Case, Were the Court Orders Nevertheless “Unreasonable” Within the Meaning of
Section 8 of the Charter?

[78]Even
where no privilege is found to exist, warrants and assistance orders against
the media must take into account their “special position” and be reasonable in
the “totality of circumstances” as required by s. 8 of the Charter
(“Everyone has the right to be secure against unreasonable search and
seizure”). It is not sufficient for the Crown to establish that the formal
statutory requirements of ss. 487.01 and 487.02 were met. Physical searches of
media premises may be highly disruptive. Searches may cause temporary or even
permanent suspension of print publication or broadcasting. Search warrant
cases like this one constitute a head-to-head clash between the government and
the media, and the media’s ss. 2(b) and 8 interests are clearly implicated.
As McLachlin J. observed in her dissenting reasons in Lessard:

The ways in which police search and seizure may
impinge on the values underlying freedom of the press are manifest. First,
searches may be physically disruptive and impede efficient and timely
publication. Second, retention of seized material by the police may delay or
forestall completing the dissemination of the news. Third, confidential sources
of information may be fearful of speaking to the press, and the press may lose
opportunities to cover various events because of fears on the part of
participants that press files will be readily available to the authorities.
Fourth, reporters may be deterred from recording and preserving their
recollections for future use. Fifth, the processing of news and its
dissemination may be chilled by the prospect that searches will disclose
internal editorial deliberations. Finally, the press may resort to
self-censorship to conceal the fact that it possesses information that may be
of interest to the police in an effort to protect its sources and its ability
to gather news in the future. All this may adversely impact on the role of the
media in furthering the search for truth, community participation and
self-fulfillment. [p. 452]

[79]As
previously observed, Lessard laid down nine conditions to provide a
suitable framework to assess s. 8 reasonableness in a s. 2(b) context.
The first requirement, of course, is that the statutory prerequisites of s.
487.01 are met. Here the issuing judge held, and both the reviewing judge
(Benotto J.) and the Court of Appeal have affirmed, that the police
established reasonable grounds to believe that criminal offences have been
committed and that information relevant to those offences will be obtained
through the use of the search warrant and the supporting assistance order.
Nevertheless, the appellants have raised a number of issues in addition to
journalistic-confidential source privilege which, they argue, are fatal to the
reasonableness of the general warrant and assistance order.

(1) The Issue of Notice to the Media

[80]The
reviewing judge, Benotto J., concluded that “[g]iven the public interest at stake,
this is one of the rare instances where failure on the part of the justice to
give notice amounts to a jurisdictional error” (para. 84 (emphasis
added)). It is true that different standards govern before and after a warrant
is issued. On the warrant application, the burden is on the police to show
reasonable and probable grounds. Once the warrant has been issued, however,
the burden shifts to the media applicant on the motion to quash to establish
that there was no reasonable basis for its issuance. Moreover, the reviewing
judge is generally bound, in deciding this issue, to afford a measure of
deference to the determination of the issuing justice.

[81]In
R. v. Canadian Broadcasting Corp. (2001), 52 O.R. (3d) 757 (Ont. C.A.),
leave to appeal dismissed, [2001] 2 S.C.R. vii, Moldaver J.A. noted that
failure to give notice to the media could constitute jurisdictional
error in some instances, but he considered such a possibility to be “remote in
the extreme” (para. 5).

[82]However,
in New Brunswick the majority of this Court held that the special
position of the media did not “import any new or additional [procedural]
requirements” (p. 475). McLachlin J., dissenting in Lessard, observed
that “[i]n some cases”, a justice may wish to hear from media
representatives on whether a warrant should issue (p. 457). In her view,
notice was a matter of discretion and did not rise to a constitutional
requirement. See also R. v. Serendip Physiotherapy Clinic (2004), 73
O.R. (3d) 241 (C.A.).

[83]I
agree with the appellants that the media should have the opportunity to put
their case against the warrant at the earliest reasonable opportunity, but the
timing is generally a matter within the discretion of the issuing judge. There
may be circumstances where the best course of action will be to proceed as
Khawly J. did here. Given the broad definition of “media” and “journalists”
covered by a potential claim for privilege, the issuing judge may conclude that
an outstanding warrant will help ensure that the evidence is not made to
disappear while the merits of issuing a warrant are debated. An issued and
outstanding warrant may discourage such misconduct. There will be cases of
urgency or other circumstances supporting the need to proceed ex parte.
In the absence of such circumstances the issuing judge may well conclude that
it is desirable to proceed on notice to the media organization rather than ex
parte.

[84]Morever,
where the issuing judge does proceed ex parte, adequate terms must be
inserted in any warrant to protect the special position of the media, and to
permit the media ample time and opportunity to point out why, on the facts, the
warrant should be set aside. The warrant and assistance order made by Khawly
J. in this case allowed a period of a month between its issuance and its
execution to ensure the appellants’ ability to move to quash it before any
seizure occurred. This procedure allowed the appellants to assemble an
evidentiary record more ample than would have been possible on short notice.
The appellants took full advantage of the opportunity thus provided. The
record in this case fills 16 volumes. The review procedure lasted from the
filing of an application to quash the warrant dated July 30, 2002 until its
disposition by Benotto J. by judgment dated January 21, 2004. In these
circumstances I do not believe the issues of onus and deference can or should
play a significant role in the outcome, especially given the court’s concern
for the special position of the media in the context of the public interest.

[85]The
appellants contend that the secret source issue was not adequately brought to
Khawly J.’s attention. However, even a cursory reading of the affidavit and
the attached correspondence included in the Information to Obtain made clear
that the secret source issue lay at the heart of the controversy. In an
appended letter to Crown counsel dated December 19, 2001, counsel for the National
Post stated: “The search for this plain brown envelope is justified, if at
all, by the belief that it could identify a confidential source . . . we
are gravely concerned about the seriousness of the constitutional violation
that is about to occur” (emphasis added). Counsel made similar statements in
several of the other documents appended to the Information to Obtain. Given
the disclosure of these facts, Khawly J. undoubtedly realized that his decision
would simply be a stepping stone to a constitutional battle in the higher
courts and proceeded accordingly.

[86]Khawly
J. gave no reasons for proceeding ex parte but the appellants’ position
was fully protected by the terms of his order and they have not demonstrated
any prejudice on that account. I agree with the Court of Appeal that the ex
parte nature of Khawly J.’s order is not a ground for setting the warrant
aside on the facts of this case.

(2) Other Lessard Conditions

[87]Apart
from the issue of confidential sources, already dealt with, the general warrant
in this case complied with other Lessard conditions designed to respect
the special position of the media. A detailed affidavit established that the
search of a newspaper office was a necessity of last resort, as required by Re
Pacific Press; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, and
the cases that followed. This affirmative finding under s. 487.01 established
the grounds for the search and compelled the appellants to invoke confidential
source privilege by meeting the Wigmore test, which they failed to do, in my
opinion. The order of Khawly J. set out conditions governing the search to
ensure “that the media organization will not be unduly impeded [by a physical
search] in the publishing or dissemination of the news” (Lessard, at p.
445). Perhaps most importantly, the order contained the usual clause directing
that any documents seized be sealed on request.

[88]The
appellants have not established any deficiency in the procedure laid out in the
order.

(3) The Assistance Order

[89]The
appellants strongly object to the issuance of an assistance order that directed
the editor-in-chief of the National Post “to take such steps as are
necessary” to give effect to the search warrant (A.R., vol. 1, at p. 7). On
the evidence before Khawly J., both Mr. McIntosh and other representatives of
the National Post had made statements suggesting that while the items
described in the search warrant had been deliberately hidden they were within
the control of the National Post. For instance, on December 13, 2001
counsel for the National Post advised Corporal Gallant that “the newspaper
does not intend to deliver up to you the ‘plain brown envelope with no return
address’ as referred to by Andrew McIntosh . . . at the Toronto meeting” (A.R.,
vol. 2, at p. 27). Correspondence from counsel for the National Post
treated the protection of the source’s confidentiality as a National Post
issue not just a McIntosh issue (A.R., vol. 2, at pp. 27-30). Given the
concerted action between Mr. McIntosh and his editor-in-chief, it was entirely
reasonable for the issuing judge to enlist the assistance of the
editor-in-chief in locating and producing the concealed document.

[90]The
appellants claim that the assistance order turns the editor-in-chief into an
“agent of the police” in the collection of evidence. This is overly dramatic.
Editors, journalists and sources do not, by reason of the important roles they
play, cease to be members of the community in which they live. The claim for
privilege in this case is rejected. The editor-in-chief, as every other member
of the community, is required in the ordinary way to respect the law. From the
media perspective, assistance orders requiring the surrender of the document
are surely preferable to a physical search of the media premises. In my view,
the assistance order was reasonable within the meaning of s. 8 of the Charter.

V. Conclusion

[91]I
conclude that in the facts of this case the appellants have not established
that the public interest in the protection of their secret source(s) outweighs
the public interest in the production of the physical evidence of the alleged
crimes. For this reason, and also because the warrant as issued was entirely
respectful of the special position of the media, I conclude that the warrant
and assistance order were properly issued and must be complied with even if the
result is to disclose the identity of the “secret source” who, on the evidence,
“uttered” a forged document. The appeal will therefore be dismissed without
costs.

[92]The
constitutional questions will be answered as follows:

1. In the context of a relationship between a
journalist and a confidential source, when the state seeks to compel the
production of information that could identify the source, does the common law
Wigmore framework of case‑by‑case privilege infringe the principle
of freedom of the press guaranteed by s. 2(b) of the Canadian Charter
of Rights and Freedoms?

[93]LeBel J. — I have read the reasons of my colleagues Binnie and Abella JJ. I
agree with Binnie J. that there should be no class privilege to protect
communications between journalists and their sources, and that claims of
journalist-source privilege should be resolved on a case-by-case basis applying
the Wigmore criteria. I am in particular agreement with his weighing of the
relevant rights and interests at the last stage of the Wigmore analysis.

[94]However,
and with respect for the contrary view of Binnie J., I agree with Abella J.
that notice should have been given to the National Post in this case. In
my opinion, when an application for a search warrant is made, there should, as
Abella J. recommends, be a presumptive requirement of notice to the affected
media organization. While valid questions may remain as to what constitutes a
media organization for the purpose of giving notice, there can be no dispute in
the present appeal that a large news media business like the National Post
belongs to this class.

[95]Even
in the most traditional format, the print media, such organizations play a key
role in disseminating information and triggering debate on public issues. The
process of applying for a search warrant should be sensitive to the need to
prevent undue or overly intrusive interference in their operations, regardless
of whether the activity in question is investigation, reporting or commentary.
The presumption of a notice requirement would allow media organizations to
raise their concerns at the first opportunity, thereby precluding or minimizing
unnecessary intrusions into their activities.

[96]I
emphasize that this requirement should be presumptive. If the applicant feels
that notice should not be given because the situation is urgent or because the
information or documents being sought might be lost, the application should
state this and explain why the notice requirement should be waived. It would
then fall to the authorizing judge to determine whether the requirement should
in fact be waived and to craft conditions that would, so far as possible, limit
interference with the operations of the affected media organization.

[97]In
the circumstances of this case, however, I do not think that the lack of notice
rendered the search unreasonable. Moreover, since the authorizing judge
proceeded on the basis of established law, I would not quash the search
warrant. For these reasons, I would dismiss the appeal.

The following are the reasons delivered by

[98]Abella J.
(dissenting) — The media’s role in disseminating information
is pivotal in its contribution to public debate and thoughtful
decision-making. Where there is a potential impediment to the responsible
performance of this role, a careful weighing of interests must be undertaken.

[99]It
is also undisputed that the investigation of crime is an important public
objective, and that the gathering of relevant evidence is integral to this
pursuit. But our justice system has always recognized that not all evidence,
however relevant, is necessarily available. The laws of hearsay, informer and
solicitor-client privilege, as well as the constitutionally mandated exclusion
of evidence under s. 24(2) of the CanadianCharter of Rights and Freedoms,
are all examples of the way the legal system is engaged in a constant balancing
of competing interests, eschewing absolutes and mandating that in each case, a
judgment must be made about which of several significant interests should
prevail.

[100]In this case, the state seeks to obtain evidence that is of only
questionable assistance in connection with a crime of moderate seriousness. It
is information that could, theoretically, identify a journalist’s confidential
source, a person who may not even be in a position to provide information of
any utility whatever to the investigation. When both sides of the scales are
weighed in this light, there is, in my view, no contest. I would refuse to
order disclosure and quash both the search warrant and assistance order.

Background

[101]In April 2001, Andrew McIntosh, an investigative reporter at the National
Post, received a sealed brown envelope with no return address. Inside the
envelope was a document which, Mr. McIntosh later confirmed, was sent to him by
“X”, a confidential source. X told Mr. McIntosh that the document was received
in the mail from another person whose identity X did not know. X also said
that he/she had discarded the envelope the document came in, then mailed the
document to Mr. McIntosh in a fresh envelope.

[102]The document appeared to be a copy of a loan authorization prepared by
the Business Development Bank of Canada in connection with a loan application
by a hotel in Quebec, the Auberge Grand-Mère. One of the document’s footnotes
included a debt to “JAC Consultants”, a Chrétien family investment company.

[103]Mr. McIntosh had taken an interest in the relationship between the then
Prime Minister and the owner of the Auberge in the late 1990s. He wrote several
articles about it in the National Post, relying heavily on confidential
sources whose information he was able to authenticate.

[104]Mr. McIntosh contacted both the Prime Minister’s office and the Bank to
verify the latest document. Both said the document was a forgery, and the Bank
complained to the RCMP about it. This launched an investigation into the
forgery claim. At a meeting with Mr. McIntosh and senior National Post
personnel on June 7, 2001, the RCMP, through Corporal Roland Gallant, asked for
the document and the envelope it came in. Corporal Gallant also asked
for the identity of the sender. These requests were refused.

[105]Without notice to the National Post or Mr. McIntosh, Corporal
Gallant obtained a search warrant and anassistance order. Both were
quashed by Benotto J. ((2004), 69 O.R. (3d) 427), but were subsequently
reinstated by the Ontario Court of Appeal (2008 ONCA 139, 89 O.R. (3d) 1).

[106]With respect, I do not share the view of the majority that the Court of
Appeal was correct in concluding that the documents should be disclosed. In my
view, the harm caused by the possible disclosure of the identity of the
confidential source in this case is far weightier than any benefit to the
investigation of the crime. Moreover, unlike the majority, I am of the view
that the National Post ought to have received notice of the application
for a search warrant. As a result, I would allow the appeal.

Analysis

Journalist-Source
Privilege

[107]While the nature and extent of a journalist-source privilege have received
extensive judicial consideration in the United States, the United Kingdom, and
Europe, they have received little evaluation in this Court (see Moysa v.
Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572). It is, as a
result, instructive to explore briefly how other jurisdictions have approached
the issue.

[108]Its inherent complexity is perhaps best exposed by the opinions in Branzburg
v. Hayes, 408 U.S. 665 (1972). In this landmark decision, the Supreme
Court of the United States dealt with journalist-source privilege for the first
time, refusing to recognize any constitutional or common law privilege that
would allow a reporter to refuse to reveal confidential information to a grand
jury. The grand jury in the United States reviews all relevant evidence to
determine whether someone should be charged with a crime and, accordingly, has
broad investigatory powers.

[109]In the context of this mandate, White J. unequivocally favoured
protecting the ability to investigate crime over protecting the media (p.
695). In concurring reasons, Powell J. qualified White J.’s reasons by
advocating a more nuanced approach that would require the examination of each
case on its own merits (pp. 709-10).

[110]Stewart J. wrote strong dissenting reasons that reflect unambiguous and
overriding support for the protection of an independent media and its ability
to disseminate news, including the protection of a journalist’s confidential
sources (p. 725). His three-part test (at p. 743) for deciding whether such a
source should be disclosed can be paraphrased as follows:

· Is there probable cause to
believe that the journalist has information that is clearly relevant to a
specific probable violation of law?

· Can the information be obtained
by alternative means that are less destructive of First Amendment rights? and

[112]This balancing is the approach that has been adopted by the Department
of Justice in the United States in its policy on the issuance of subpoenas to
the news media, as codified in the Code of Federal Regulations:

. . . the approach in every case [of determining whether to request
issuance of a subpoena to a member of the news media] must be to strike the
proper balance between the public’s interest in the free dissemination of ideas
and information and the public’s interest in effective law enforcement and the
fair administration of justice. [28 C.F.R. § 50.10(a) (2009)]

[114]This international perspective leads me to agree with Binnie J. that
journalist-source privilege should be assessed on a case-by-case basis. I
accept the criticism that this approach can create some imprecision, but judges
rarely have the luxury of applying absolute rules and adjudicate of necessity
in fields of law bounded by designated borders within which discretion is
exercised based on the particular circumstances of the case. In other words,
balancing competing interests, with all its inherent nuance and imprecision, is
a core and routine judicial function.

[115]Like Binnie J. too, I think that this balancing should be done in
accordance with the four Wigmore criteria infused with Charter values (Slavutych
v. Baker, [1976] 1 S.C.R. 254; M. (A.) v. Ryan, [1997] 1 S.C.R. 157,
at para. 30). And finally, I agree that the first three Wigmore criteria are
met in this case.*

[116]Where I respectfully part company with Binnie J. is at the fourth and
final stage of the Wigmore test. This is the step at which the claimant has
the burden of demonstrating that “[t]he injury that would inure to the
[relationship] by the disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of litigation”
(emphasis in original).

[117]This means looking first at what injury is caused by disclosing the
material and potentially the identity of the confidential source. The context
for considering the particular harm in this case is the role of
confidential sources generally in the responsible performance of the media’s
role. In my view, those sources represent a significant and legitimate
journalistic tool, and where reasonable, good faith efforts have been made to
confirm the reliability of the information from those sources, their
confidentiality ought to be protected.

[118]In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, this
Court recognized that the use of confidential sources could be an integral part
of responsible journalism in communicating matters of public interest:

It may be responsible to rely on confidential sources,
depending on the circumstances; a defendant may properly be unwilling or unable
to reveal a source in order to advance the defence. [para. 115]

[119]In the United States, approximately three dozen states have enacted
press “shield laws” protecting the relationship between a news reporter and his
or her source. All but one of the remaining states judicially recognize some
form of journalist-source privilege. While the scope of the protection varies
from state to state, most of these protective laws offer some form of qualified
privilege to reporters consistent with the three-part test suggested by Stewart
J. in Branzburg, that is, source information is protected unless the
party seeking disclosure can establish that (i) the information is relevant;
(ii) the information is unavailable through other sources; and (iii) a
compelling public interest exists for the disclosure of the information (CRS
Report for Congress, Journalists’ Privilege to Withhold Information in
Judicial and Other Proceedings: State Shield Statutes, June 27, 2007, at
pp. CRS-1 and CRS-2). A bill to provide such protection at the federal level
(the Free Flow of Information Act of 2009, H.R. 985) was passed by the
House of Representatives in March 2009 and is currently before the Senate.
Similar legislative protection exists in the United Kingdom, Australia,
Austria, France, Germany, Japan, Norway and Sweden (see Kyu Ho Youm,
“International and Comparative Law on the Journalist’s Privilege: The Randal
Case as a Lesson for the American Press” (2006), 1 J. Int’l Media & Ent.
L. 1; Article 19 and Interights, Briefing Paper on Protection of
Journalists’ Sources: Freedom of Expression Litigation Project, May 1998
(online)).

[121]In the case before us, the information provided by X — and other
confidential sources — was crucial to Mr. McIntosh’s ability to write about
the relationship between the then Prime Minister and the Auberge. And the
record in the case before us contains affidavits from several journalists
stressing the importance of protecting confidential sources in their ability to
gather and report the news. Peter Desbarats, former Dean of the Graduate
School of Journalism at the University of Western Ontario, stressed the
importance of such sources to “investigative journalists [in seeking] to serve
the public interest by bringing to public attention matters that people in
authority are less than anxious to have subjected to public scrutiny”. In his
view:

Given my experience in the world of journalism, it is
my opinion that the interests of a free press require the court to recognize
the special relationship between a journalist and a confidential source who has
been given a promise of secrecy. The giving of promises of secrecy is
essential to a free and vigorous press, which in turn is essential to ensuring
a well informed citizenry and a vibrant democracy.

As Mr. McIntosh
himself stated in his affidavit, echoing the experiences expressed by other
journalists in the various affidavits submitted in these proceedings:

. . .
sometimes a source will share either confidential information and/or documents
with me for use in a story on the explicit condition that under no
circumstances is their identity as the source of the information or documents
ever to be publicly disclosed to anyone, particularly in the event of a legal
proceeding, public hearing or official inquiry of any kind that may result from
the publication of the subsequent story . . . .

. . .

. . . my effectiveness as an investigative reporter
would be seriously impaired because key sources would no longer trust me to
keep their identities confidential, thereby preventing me from getting the
sensitive information I need to do my job and reveal matters of public interest
that might otherwise remain unknown to the Canadian public.

[122]Nor can the chilling effect that could result from the compelled
disclosure of confidential journalistic sources be ignored as a consequential
harm. This concern was expressed nearly three decades ago by the House of
Lords in British Steel Corp. v. Granada Television Ltd.,[1981] 1
All E.R. 417:

[T]he newspapers should not in general be compelled to disclose their
sources of information. Neither by means of discovery before trial. Nor by
questions or cross-examination at the trial. Nor by subpoena. The reason is
because, if they were compelled to disclose their sources, they would soon be
bereft of information which they ought to have. Their sources would dry up. Wrongdoing
would not be disclosed. . . . Misdeeds in the corridors of power, in companies
or in government departments would never be known. Investigative journalism
has proved itself as a valuable adjunct of the freedom of the press. [p. 441]

[123]Similarly, in the recent case of Financial Times Ltd. v. The United
Kingdom, [2009] ECHR 2065 (BAILII), the European Court of Human Rights
warned:

While . . . the applicants in the present case were
not required to disclose documents which would directly result in the
identification of the source but only to disclose documents which might, upon
examination, lead to such identification, the Court does not consider this
distinction to be crucial. In this regard, the Court emphasises that a
chilling effect will arise wherever journalists are seen to assist in the
identification of anonymous sources. In the present case, it was
sufficient that information or assistance was required under the disclosure
order for the purpose of identifying X. [Emphasis added; para. 70.]

[124]There is no doubt that caution must be exercised in ensuring the quality
and veracity of the confidentially received information (see David Abramowicz,
“Calculating the Public Interest in Protecting Journalists’ Confidential Sources”
(2008), 108 Colum. L. Rev. 1949, at pp. 1966-70), but in the case before
us, Mr. McIntosh had a sound basis for his confidence in X’s reliability.

[125]Although this was X’s first direct contact with Mr. McIntosh, X’s
reliability had been previously confirmed. Through another confidential
source, “Y”, Mr. McIntosh had ascertained that the Prime Minister had made
several telephone calls to the Bank in connection with loans to the Auberge. Y
had received this information from X, including:

· a letter from the manager of the
Trois-Rivières Bank branch to a senior vice-president of the Bank expressing
concern about the risky nature of the loan applied for by the Auberge and
recommending the application’s referral to a credit committee at the Bank;

· a letter from the owner of the
Auberge to the Prime Minister urging him to intervene to ensure he got the loan
he needed; and

· a Bank document containing “media
lines” — “politically acceptable” responses — to respond to anticipated
questions from reporters about the Prime Minister’s telephone calls to the Bank
to ensure the approval of the loans to the Auberge.

Y also showed
Mr. McIntosh documents detailing the dates of telephone calls by the Prime
Minister to the Bank.

[126]Several separate and independent confidential sources provided
information to Mr. McIntosh that corroborated these telephone calls, both
before and after Mr. McIntosh viewed the documents shown to him by Y. And
despite originally denying any involvement in the Bank’s decision to grant a
loan to the Auberge, the Prime Minister later confirmed that he had indeed made
the telephone calls to the Bank, but denied that there was anything improper or
unusual about requesting the Bank to “settle” a file that “was not moving”.

[127]In addition to relying on this prior and positive experience with X, Mr.
McIntosh explained in his affidavit that he sought to test X’s credibility in
connection with this latest document by asking for an affidavit from him/her:

I asked X whether he/she would be prepared to swear a confidential
affidavit confirming that he/she did not alter or forge the loan authorization
document. I used this approach to test X’s integrity. As X agreed without
hesitation to swear such an affidavit, I did not proceed further with this
request.

[128]And to protect his own integrity, Mr. McIntosh told X that he would only
protect his/her confidentiality if he were satisfied that he was not being
misled:

I stated to Confidential Source X that as long as I
believed that he/she had not provided the document to deliberately mislead me,
my undertaking of confidentiality would remain binding. I also told
Confidential Source X that should irrefutable evidence to the contrary emerge,
our agreement of confidentiality would become null and void. X agreed to these
terms.

[129]Given Mr. McIntosh’s reputation, it strikes me as counterintuitive to
conclude that he would protect the identity of a source whom he suspects of knowingly
providing him with false information. Mr. McIntosh should not be taken to have
intended to risk his reputation or his livelihood so easily.

[130]Where, as here, the journalist has taken credible and reasonable steps
to determine the authenticity and reliability of his source, one should respect
his professional judgment and pause, it seems to me, before trespassing on the
confidentiality which is the source of the relationship.

[131]Having identified what I see as demonstrable and profound injury to the
journalist/source relationship resulting from disclosure of the documents and
potentially the identity of the source in this case, the other side of the
Wigmore balancing exercise requires consideration of the countervailing
benefits of disclosure. For the reasons that follow, I see those benefits as
ranging from speculative to negligible.

[132]Corporal Gallant said that he wanted the loan authorization document as
well as the envelope it came in, in the hopes that these materials would reveal
the identity of the source of the alleged forgery. As he said in his
Information to Obtain:

The brown envelope that contained the documents and
that was received by the National Post can contain information. I wish to submit
it for forensic examination to determine whether it, or the false document, has
fingerprints or other identifying markings which might assist in identifying
the source of the document. As the forged object it will be required as
evidence to substantiate any charge arising out of this investigation.

[133]Corporal Gallant had consulted a document examiner at the RCMP Central
Forensic Laboratory in Ottawa to determine what forms of evidence an
examination of the materials could yield:

She . . . confirmed for me that it may be possible to acquire
biological material (saliva) left on a stamp or seal of an envelope, if the
person placing the stamp or closing the seal licked the stamp/seal to engage
the adhesive. Finally, she confirmed that it may be possible to
fingerprint the documents to identify who had handled them. [Emphasis added.]

[134]At best, then, “it may be possible” to acquire identifying information.
Based on the record, however, there is a fatal disconnect between the envelope,
the documents, the identity of X and the alleged forgery, regardless of the
fruits of the forensic testing.

[135]As previously noted, X told Mr. McIntosh that he/she received the
document anonymously in the mail, had discarded the envelope, and forwarded the
document to Mr. McIntosh in a different envelope. It also appears from the
record that X did not know the document might be a forgery when it was sent to
Mr. McIntosh. Since X did not know the identity of the person from whom he/she
had received the document, learning X’s identity would yield virtually no
evidence that could assist in determining who was responsible for the alleged
forgery.

[136]Secondly, Corporal Gallant said in cross-examination that “[t]he more
documents are manipulated, the least likely the chances of getting fingerprints
off of it”, and acknowledged that there was a “far more remote and speculative
possibility that that same document [had] the prints of the forger”. Both the
document and the envelope had been extensively handled. Mr. McIntosh took the
document and envelope with him from Ottawa to Toronto, where they were handled
by the lawyer for the National Post, the editor-in-chief and the deputy
editor. It is therefore possible that even forensic testing, including DNA testing
of the materials, would not be of any assistance in identifying the alleged
forger.

[137]And this brings us to another factor limiting the benefit to the
criminal investigation of learning X’s identity. On cross-examination,
Corporal Gallant explained that he wanted to learn X’s identity because he
wanted to question X about X’s source, whose identity, it should be remembered,
was unknown to X:

A We knew that that person could potentially open other avenues
for the investigation, and we could possibly determine from where that person
obtained that information. So our role in this was in fact to find this
person, but also to speak to this person to see if we could find -- to go
backward in order to find the person that might have sent the document in the
first place, and this person could potentially help us in our investigation,
and this person could potentially be considered as a suspect or a witness, but
at that time we did not know.

Q And assuming if you accept what Mr. McIntosh has said, and you
don’t have evidence to the contrary, “X” who sent the document to Mr. McIntosh
also received the document anonymously; isn’t that correct?

A That is in fact what Mr. McIntosh wrote, but, myself, I have not
had an opportunity to speak to that person.

Q And you have no information to the contrary that would indicate
other than what Mr. McIntosh has said?

A No, Your Honour.

Q So, do you agree, Corporal Gallant, that as the matter is now
known to stand, the person who sent the document is not -- there is no evidence
that that person is the forger? No suggestion that he or she is the forger?

A Yes, Your Honour. Well, to date, Your Honour,
I had not had an opportunity to speak to that person, and to date I have no
reason to believe or evidence to support that what Mr. McIntosh writes on that
would be true.

[138]But in light of the right to remain silent, X, even if identified, would
be under no legal obligation to speak to the police, a critical fact which was
acknowledged by the Crown (R. v. Hebert, [1990] 2 S.C.R. 151; R. v.
Chambers, [1990] 2 S.C.R. 1293, at pp. 1315-16; and R. v. Turcotte,
2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-46).

[139]Since X is under no obligation to respond to questions from the police,
since the evidence is that X received the document from an anonymous source
whose identity he/she did not know, and since the envelope in which X received
the document is not the envelope in the National Post’s possession, the
benefit to the forgery investigation of getting the documents is, at
best, marginal. Based on all of this, it seems to me to be clear that X is in
no position to provide any information of assistance in the investigation of
the alleged forgery, even if he/she agreed to be questioned by the police.

[140]The only possible evidence the envelope could yield, and that only
remotely, is the identity of X, not of the alleged forger. This would mean
that the only purpose for learning the confidential source’s identity is to
discover who had created this public and awkward controversy. Corporal
Gallant’s Information to Obtain appears to confirm this purpose when he says:

. . . this investigation seeks to determine the identify [sic] of
someone who has maliciously attempted to mislead the press with a view to the
publication of false information. It is not intended to identify a person
providing truthful information to a news outlet.

Curiosity about
the identity of a confidential source may be understandable, but is never, by
itself, an acceptable basis for interfering with freedom of the press (O’Neill
v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389 (Ont. S.C.J.)).

[141]And that brings us to consider the seriousness of the crime at issue in
this case, a factor that seems to me to be relevant in balancing the competing
interests. As Professor Gora argues:

Have we solved or deterred important crimes that would not have been
otherwise interdicted by law enforcement? Have journalists ever provided the
smoking gun to help catch a killer or a terrorist, or just a leaker? . . . Has
the gain to law enforcement been worth the loss to the First Amendment? A
proper respect for the First Amendment requires that we at least ask these
questions. [pp. 1420-21]

We must remember
that what we are dealing with here is an alleged forgery. On a continuum of
serious criminality, it strikes me as unhelpful to compare a possible forgery
of a possible debt, as in our case, with the Paul Bernardo murder scenario the
majority’s reasons invoke by relying on R. v. Murray (2000), 144 C.C.C.
(3d) 289 (Ont. S.C.J.). The remote possibility of resolving the debt forgery
is far from sufficiently significant to outweigh the public benefit in
protecting a rigorously thorough and responsible press.

[142]So on one side of the balance we have the slightest possible benefit to
an investigation of an alleged forgery, and on the other we have the far
weightier injury to the press interests at stake in revealing X’s identity.
Even if there is only a remote prospect of being able to identify X from the
documents, the remoteness of this possibility hardly argues for disclosure, as
the majority suggests. There may be no consequential harm to X, but neither
will there be any consequential benefit to the investigation. This means that
the harm and benefit of disclosure in this particular case is
speculative at best. The major demonstrable harm, with no countervailing
benefit, is to the ability of the press to carry out its public mandate.

[143]The fourth and final Wigmore criterion for protecting the
confidentiality of Mr. McIntosh’s source has therefore been satisfied and the
documents should not be disclosed.

Notice

[144]I have a remaining concern about the procedure followed in this case,
namely, the failure to give notice to the National Post that a search
warrant was being requested. The operating presumption should be that the
media’s unique institutional character entitles it to notice when a search
warrant is sought against it. A search warrant of media premises is a
particularly serious intrusion, and a decision should not be made about its
propriety without submissions from the party most affected.

[145]The Crown informed the Justice of the Peace that the National Post
had requested notification of the application, but he decided to proceed
without notice. This is regrettable, since there were serious informational
gaps in the Information to Obtain that were substantially narrowed by the National
Post after the search warrant had been issued. Had the fuller record and
arguments been known, the outcome of the hearing might well have been
different.

[146]In Canadian Broadcasting Corporation v. Lessard, [1991] 3 S.C.R.
421, and Canadian Broadcasting Corporation v. New Brunswick (Attorney
General), [1991] 3 S.C.R. 459, this Court dealt with search warrants
involving the media. As Cory J. stated for the majority in Lessard,
these are circumstances that warrant caution and accommodation:

. . . the media are entitled to particularly careful consideration, both
as to the issuance of a search warrant and as to the conditions that may be
attached to a warrant to ensure that any disruption of the gathering and
dissemination of news is limited as much as possible. The media are entitled
to this special consideration because of the importance of their role in a
democratic society. [p. 444]

[147]In her dissenting reasons in Lessard, McLachlin J. was alert to
the potential for interference with freedom of the press. She pointed out that
the “prospect of seizure of press material in future cases without the
imposition of conditions to protect press freedom and the identity of
informants . . . creates the chilling effect” (p. 453). Her proposed approach,
like the balancing suggested by Stewart J. in Branzburg and in
complete harmony with the fourth criterion in Wigmore, required that there be
an absence of available alternative sources for the required information
sought, and sufficient significance to that information to justify the
interference with press freedom.

[148]Cory J. recognized that the media was usually an innocent third party in
connection with a crime being investigated, and that the supporting affidavit
should therefore contain the appropriate information, including whether
alternative sources for obtaining the information sought by the warrant had
been reasonably investigated and exhausted (Lessard, at p. 445; see also
La Forest J.’s concurring reasons at pp. 431-32, and Re Pacific Press Ltd.
and The Queen (1977), 37 C.C.C. (2d) 487 (B.C.S.C.), at p. 495). He warned
that search warrants could be invalidated if it subsequently came to light that
pertinent information that could have affected the decision to issue the
warrant was not disclosed. The absence of such relevant information, it seems
to me, is precisely what happened in the case before us.

[149]On the cross-examination of Corporal Gallant, for example, it emerged
that alternative sources of the document had not been seriously investigated,
despite Corporal Gallant’s statement in his Information to Obtain, that:

The evidence I wish to seize — the forged document and the envelope in
which it was delivered — is not available from any other source. This evidence
is unique and central to this investigation. The evidence is the actus reus
of the offence.

[150]He confirmed that the Bloc Québecois had anonymously received a document
identical to the one the National Post had, yet said he had not been
able to get forensic evidence from it because the Bloc had distributed several
copies of the document to members of the party and it was unclear which of them
was the original.

[151]Nor did Corporal Gallant inquire into whether any other members of
Parliament or other media outlets may have received the document:

Q . . . did you make inquiries of the other political parties, such
as the Conservative party and the Alliance party, because they clearly were
reviewing the documents? Did you make such inquiries before you got the search
warrants in this case?

A At this time, no, Your Honour. I have not
started anything with respect to political parties, whether it be the PC or the
Alliance.

. .
.

Q And just to complete this area, I also understand that you made
no inquiries of other major media outlets like the Canadian Broadcasting
Corporation or The Globe and Mail, to see whether they received such a
document?

A No. That’s correct, Your Honour. The
complaint we got here at the RCMP related to The National Post, and we have not
directed our attention to other media organizations.

[152]And although the information he gave in the Information to Obtain was
that there was no outstanding debt from the Auberge to JAC Consultants,
Corporal Gallant admitted on cross-examination that he had not examined the
books of JAC Consultants prior to filing his request for the search warrant.
This was of some significance because the cross-examination also revealed that
there were problems with some of the corroborating documents provided by the
Bank.

[153]The original suppliers’ list that the Bank gave to Corporal Gallant,
which he had reviewed at the start of the investigation, was missing the page
where, alphabetically, “JAC Consultants” would have appeared. The Bank
requested and received a new suppliers’ list from the accountant for the owner
of the Auberge, which did not show any debt to JAC Consultants. Through the
cross-examination of Corporal Gallant, it was revealed that these two lists had
different dates on them, and that they differed in some of the supplier names and
amounts. By itself, this information might not have made a difference in the
outcome, but when blended with the other missing pieces in the Information to
Obtain, it arguably assumes some potential relevance.

[154]But the most notable fact missing from the narrative that was revealed
by the cross-examination of Corporal Gallant, was that the document came from a
confidential source:

Q From your perspective, did you or did you not believe it was
important to tell the judge that the material you sought may have emanated from
a confidential source?

A Well, the information I had at the time . . .
was that the documents we were seeking came from an anonymous source. It was
not described to us as a confidential source.

Counsel for the National
Post then drew Corporal Gallant’s attention to a letter he had received
prior to seeking the warrant, in which the National Post had voiced its
concern that what was being sought emanated from a confidential source:

Q And I take it, sir, that at no time did you draw, especially to
the Justice of the Peace, that the document and envelope that you sought from
The Post’s perspective emanated from a confidential source? You did not draw
that to his attention? Beyond putting this letter in the appendix?

A No. That is not included in the search warrant
. . . except for the fact that it’s written here.

This
information, if disclosed, would logically have led to an inquiry into whether
the confidentiality of the source ought to be protected.

[155]It seems logical to me that given the inherent legal complexities in
authorizing a search warrant against the media, any problems with the
Information to Obtain should be canvassed prior to deciding whether to
issue the warrant. The National Post lost the opportunity to make timely
submissions not only on the confidential nature of the source, but also
about the deficiencies in the information. Taken together, the information
elicited through cross-examination might well have resulted in the search
warrant not being issued at all.

[156]The media will always be in the best position to provide relevant
information about the particular context, including whether a confidential
relationship is at stake. As a general rule, therefore, it is entitled to
notice of a request for a search warrant unless there are exceptional and
urgent circumstances justifying an ex parte hearing.

[157]Here there were no such circumstances. The Bank complained to the RCMP
about the forgery by telephone on April 7, 2001, and formally complained by
letter on April 11, 2001. Mr. McIntosh was interviewed on June 7, 2001, and
the search warrant was issued over a year later on July 4, 2002. Clearly there
was ample time for the National Post to receive notice of the
application for a search warrant, to cross-examine Corporal Gallant, and to
make its submissions.

[158]The Crown argued that the one-month delay between the granting of the
search warrant and its execution gave the National Post time to respond
to the issuance of the warrant with a certiorari application. This,
with respect, is an untimely — and needless — public expense. The National
Post should have had the opportunity to make its submissions before
the warrant was issued.

Conclusion

[159]I would therefore allow the appeal, set aside the judgment of the
Ontario Court of Appeal, and restore the judgment of Benotto J. quashing the
search warrant and the assistance order.

Appeal dismissed, Abella J.dissenting.

Solicitors for the appellants: Marlys Edwardh Barristers
Professional Corporation, Toronto.

Solicitor for the respondent: Crown Law Office — Criminal,
Toronto.

Solicitor for the intervener the Attorney General of
Canada: Department of Justice, Vancouver.

Solicitor for the intervener the Attorney General of New
Brunswick: Office of the Attorney General, Fredericton.

Solicitor for the intervener the Attorney General of Alberta: Alberta
Justice, Calgary.

Solicitors for the intervener the Canadian Civil Liberties
Association: Osgoode Hall Law School of York University, North York;
Davies Ward Phillips & Vineberg, Toronto.

Solicitor for the interveners the Canadian Newspaper Association, Ad
IDEM/Canadian Media Lawyers Association, the Canadian Journalists for Free
Expression, the Canadian Association of Journalists, the Professional Writers
Association of Canada, RTNDA Canada/Association of Electronic Journalists,
Magazines Canada, the Canadian Publishers’ Council, the Book and Periodical
Council, the Writers’ Union of Canada and PEN Canada: Brian MacLeod
Rogers, Toronto.